City
Of
And
Pullman
Police Officers’ Guild
Interest
Arbitration
Arbitrator: Gary L. Axon
Date
Issued:
Arbitrator:
Axon; Gary L.
Case #: 09223-I-91-00204
Employer:
City of
Date Issued:
IN THE MATTER OF )
)
INTEREST ARBITRATION ) NEUTRAL
ARBITRATOR'S
)
BETWEEN ) OPINION
AND AWARD
)
PULLMAN POLICE OFFICERS' GUILD, ) (1990-1992
CONTRACT)
)
Guild, )
and )
)
CITY OF
City. )
HEARING SITE: City
Hall
HEARING DATES: December
15, 16, 1991
POST-HEARING BRIEFS DUE:
RECORD CLOSED ON RECEIPT OF BRIEFS:
ARBITRATION PANEL: Michael B.
Austin
Guild
Appointed Member
Scott
C. Broyles
City
Appointed Member
Gary
L. Axon
Neutral
Arbitrator
1465
Pinecrest Terrace
CITY REPRESENTATIVE : Roy Wesley
ELMS,
Inc.
GUILD REPRESENTATIVE: Daryl S. Garrettson
Aitchison, Hoag, Vick
&
Tarantino
Labor
Consultants
1313
NW 19th
The issues submitted to interest arbitration
are as
follows:
INDEX OF ISSUES
ISSUE PAGE
1
. Wages 7
2. Guild Security 30
3. Supervisory Duties 35
4
. Overtime 40
5
. Holidays 48
6
. Vacations 54
7. Premium Pay 57
8. Training Standards 61
9. Education/Longevity 67
10. Druq Testing 71
11. prevailing Riqhts 78
12. Pay
Days 82
INTRODUCTION
This
case is an interest arbitration conducted pursuant
to RCW 41.56.450, 452, and 460
respectively. The parties to this
dispute are the City of
and the
status quo is represented by a Collective
Bargaining Agreement
between the City of
contract which covered the period 1987
through 1989. The Guild
succeeded the Teamsters as the
representative of people employed in
the Pullman Police Department. There are 21 members of the
bargaining unit represented by the
Guild. The Chief of Police is
William T. Weatherly.
The
City of
miles south of
City encompasses a land area of 5.9 square
miles.
is primarily an agricultural county. On the
north end of the City,
approximately 100 buildings to serve a
student population of
approximately 16,000.
employer in the City of
maintains its own police force.
The
determination of the population figure to be utilized
for
WSU students who occupy both on and off
campus housing within the
City.
The 1991 Association of Washington Cities Salary Survey
lists
$1,880,000 worth of bonds in 1988, the City
listed its population
at 22,069.
(G1.10). The signs indicating
motorists are entering
population of
residents occupying dormitories on the WSU
campus. The City
calculates
the figure that
should be utilized
for making
comparisons to be 17,705 persons. On the other hand, the Guild
believes the City should be held to the
23,000 figure as it is the
one City cites when securing funds from the
state of
In a 1981 award between the City and
Teamsters
arbitrator Zane Lumbley
allocated the total WSU student population
on a 50-50 basis between WSU and the City of
determined the 1981
population of the City for purposes
of
arbitration to be 15,316.
After
the
the employees of the Police Department, the
parties met in both
bargaining sessions and later in mediation
in an effort to conclude
a successor Agreement. The parties reached tentative agreement on
several issues, but were unable to conclude
a final Collective
Bargaining Agreement. This contract will be the first contract
between the
Guild also represents non-uniformed
personnel covered by a separate
Agreement referred to as the
Employees contract.
On
the failure of the parties to conclude a Collective
Bargaining Agreement, Marvin Schurke, PERC, Executive Director,
certified
the remaining 12
unresolved issues for
interest
arbitration.
A hearing was held before the arbitration panel on
December 15 and 16, 1991. At the hearing the parties were given
the full opportunity to present written
evidence, oral testimony
and argument. The testimony of witnesses was taken under
oath and
recorded by a court reporter. The neutral Arbitrator hereinafter
("Arbitrator") was provided with a
verbatim transcript for his use
in reaching a decision in this case.
The
parties agreed to file post-hearing written briefs in
lieu of oral closing arguments. The briefs were timely filed and
the record closed as of
record made in this case, the parties agreed
to an extension of the
statutory requirement that a decision be
issued within 30 days of
the close of the record. On
and conferred with the party appointed
members of the arbitration
panel to discuss the evidence and argument
contained in the record
of this case. The input provided by the party appointed
panel
members was of great assistance to the
neutral Arbitrator in making
his findings of fact and award on the issues
presented for
arbitration.
The
hearing in this case took two full days for the
parties to present their evidence and
testimony. The transcript
contained 468 pages of testimony. The parties provided the
Arbitrator with substantial written
documentation in support of
their respective positions. Comprehensive
and lengthy post-hearing
briefs were submitted to the Arbitrator with
accompanying interest
arbitration awards issued by other
arbitrators in the state of
Washington.
The
approach of this Arbitrator in writing the award will
be to summarize the major and most
persuasive evidence and argument
presented by the parties. After the introduction of the issue and
position of the parties, I will state the
principal findings and
rationale to cause the Arbitrator to make
the award on a specific
issue.
It is also important to note that several of the major
issues broke down into numerous sub-issues
in which case extensive
evidence and argument was also
presented. In many of the issues
the evidence and argument applied to several
different issues and
sub-issues. For the sake of brevity, I will
try to avoid repeating
discussion of the evidence where the
evidence applied to more than
one issue.
This
Arbitrator carefully reviewed and evaluated all of
the evidence and argument submitted pursuant
to the criteria
established by RCW 41.56.460. Since the record in this case is so
comprehensive it would be impractical for
the Arbitrator in this
discussion and award to discuss and refer to
each and every piece
of evidence or testimony presented. However, in each and every
issue the Arbitrator considered all of the
evidence and argument
submitted in formulating the award.
The
statutory factors to be considered by the Arbitrator
may be summarized as follows:
(a) The constitutional and
statutory
authority of the employer;
(b) Stipulations
of the parties;
(c) (i) For employees
listed in RCW
41.56.030(7)(a) and 41.56.495, comparison of
the wages, hours, and conditions of
employment
of personnel involved in the proceedings
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:
*
* *
(d) The
average consumer prices for goods and
services,
commonly known as
the cost of
living;
(e) changes
in any of the foregoing
of
circumstances during the pendency of the
proceeding;
(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.
ISSUE 1: Wages
A. Background
The
contract subject to arbitration covers the years 1990
through 1992. The present salary schedule is represented by
the
contract which expired at the end of
1989. Pursuant to that
contract a beginning police officer starts
at $1,845 per month at
Step 1 with advancement to $2,263 at Step
5. Sergeants and
detectives are paid $2,608 per month. (City Ex. 43). The
traditional benchmark comparison is the top
step of the police
officer classification. The evidence on comparability offered by
both sides concentrated on the top step
officer pay.
Due
to the protracted nature of the negotiations and
change in bargaining representatives, the
members of this unit have
not received a wage increase since
1989. Both parties are
proposing retroactivity back to January 1,
1990. The City's offer
would put in place a top step police
officer's salary on January 1,
1992, of $2,632 per month. The Guild is seeking a salary increase
which would place the top step police
officer on January 1, 1992,
at $2,938 per month. (City Ex.
36). Both parties offered
comprehensive and extensive data in support
of their respective
wage proposals. In the post-hearing briefs counsel for the
disputants provided the Arbitrator with a
comprehensive review of
the evidence submitted during the two days
of hearing. The neutral
Arbitrator with the assistance of the party
appointed arbitrators
reviewed the evidence and argument on the
wage issue at an
executive session.
The
driving force behind the positions of the parties on
the
wage issue was
comparability. Each party
submitted
considerable evidence and argument to
support its position on the
appropriate comparators for the purpose of
establishing wages for
Pullman police officers. The Arbitrator was also supplied with
several interest arbitration decisions
involving other Washington
cities.
The evaluation of the record in this case is unique in
that it involves a three year contract
period which will expire
approximately nine months from the date of
this award. As a
consequence, the evidence and findings on
the wage issue must be
evaluated in the context of a three year
Agreement soon to expire.
B. The
Guild
The
Guild proposed that 1990 salaries will be compensated
using the average of the top step of the
patrolman's salary for
each of the five comparator cities selected
by the Guild. For
1990, this would translate into a 10%
increase. Effective January
1, 1991, an additional 10% would be added to
the base salary.
Effective January 1, 1992, the base salary
would be increased by an
additional 7.3% to $2,938. The 27.3% salary increase over the
three year period is necessary to establish
a top step salary equal
to
the average top
step salary for
the five comparable
jurisdictions proposed by the Guild. (G1.36).
The
five cities selected as its comparable jurisdictions
are Kennewick, Pasco, Richland, Walla Walla and Wenatchee.
These
are the only five Washington cities east of
the Cascades with a
population between 15,000 and 50,000. According to the Guild, the
geographic
area and population make
these five cities
the
appropriate comparables for which to
establish Pullman police
wages.
The Guild advanced four primary reasons why the Arbitrator
should adopt the Guild's comparators.
First,
the Guild argued that RCW 41.56.460 requires the
panel to take into consideration the wages,
hours and conditions of
employment of like personnel of like
employers of similar size on
the West Coast of the United States. From the viewpoint of the
Guild,
like personnel are "uniform personnel of cities of a
population of 15,000 or more." RCW 41.56.030(7) defines uniform
personnel as law enforcement officers
employed by "cities with a
population of 15,000 or more." The Arbitrator is bound to respect
the definition established by the Washington
legislature.
Second,
the arbitration panel should reject consideration
of Washington cities below 15,000 in
population because they do not
share a common collective bargaining
status. Law enforcement
officers employed by Washington cities under
15,000 do not have
collective bargaining rights. As such, Washington cities with a
population of under 15,000 are not similarly
situated and should be
excluded from consideration by the
Arbitrator.
Third,
the Washington Association of Cities utilizes the
15,000 to 50,000 population category for
grouping jurisdictional
salary surveys. (G1.3(A) & (B)). Fourth, the City utilized that
same grouping when it compared itself to
other jurisdictions for
the purpose of evaluating management
salaries. (G1.2) It is the
position of the Guild that this grouping
reveals a statistically
significant pattern for wages in Washington
which the panel should
utilize in "determining what is a fair
day's pay for a fair day's
work for a police officer in the state of
Washington."
The
parties agree that the appropriate comparators must
be located east of the Cascades. Pursuant to that understanding
the City and Guild agree that Pasco, Walla Walla and Wenatchee are
appropriate comparators. The Guild vigorously rejects the City's
proposed comparables of Moses Lake,
Ellensburg, Whitman County, the
Washington State University Police
Department and Moscow, Idaho, as
appropriate comparators by which to
establish Pullman police wages.
Regarding
Ellensburg and Moses Lake, the Guild points out
their populations are below 15,000 and thus
should be excluded
under
the collective bargaining
statute as too
small for
comparison.
Moscow, Idaho is an inappropriate comparator because
it is not a West Coast city. RCW
41.56.460(C)(I) limits comparison
to West Coast cities. Arbitrators have held
that West Coast cities
are those cities located within the states
of Washington, Oregon
and California. Since Moscow is not a West Coast city and its
officers have no collective bargaining
rights, the Arbitrator
should reject Moscow as an appropriate
comparator.
Recognizing
that Pullman is located in Whitman County,
the Guild asserts Whitman County is not an
appropriate comparator.
Whitman County is not a like employer
because it is a county and
county law enforcement officers have no
collective bargaining
status.
In addition, the number of officers and crime statistics
do not support the use of Whitman County as
a comparator. The
economic circumstances are different in that
Whitman County is
broke.
Turning to the WSU Police Department which the City seeks
to compare with for purposes of establishing
wages, the Guild
asserts WSU does not meet the statutory test
of a like employer.
WSU is not a city but a university. WSU police officers do not
share common collective bargaining status.
As such, the Arbitrator
should reject the City's attempt to compare
Pullman police officers
with WSU officers.
The
Guild next asserts that the appropriate population
for Pullman is 23,000. From the viewpoint of the Guild, the
Arbitrator should reject the City's attempt
to adjust the Pullman
population by some 6,000 to 17,705 persons
because of the impact of
WSU students. According to the Guild, the City's position
on
population is inconsistent in that it uses a
23,000 population
figure when it seeks state revenue funds, on
signs posted at the
City limits and otherwise when securing
funds from outside sources.
WSU students also have a very profound
affect on the Pullman Police
Department in that its officers must provide
police services for
students living off campus. Further, Pullman police officers
perform police services on the WSU campus in
conjunction with the
WSU police force.
The
City presented an interest arbitration award by
arbitrator Thomas Levak
in the city of Walla Walla and the Walla
Walla Police Guild. (PERC No. 6213-I-86-139). The Guild notes
that in the Walla Walla
case Levak chose as the Washington
comparators the same five cities as proposed
by the Guild. Since
Walla Walla and
Pullman are very close in size, offer similar
geographic positions and the selection of
those five cities by
arbitrator Levak
as valid comparators, the five eastern Washington
cities proposed by the Guild offer the best
measure for determining
a fair day's pay for a fair day's work.
While
the City stated in its opening argument that it
would not make an inability to pay argument,
the Guild felt it was
appropriate to examine the City's ability to
pay in light of the
position taken by the City that it was not
in the position to fund
the Guild's proposal without major
adjustments in its budget. City
witness Tonkovich
testified at the arbitration hearing that the
City had more than enough resources to pay
the estimated cost of
the Guild's three year proposal of
$550,849. (City Ex. 36). The
Guild further argues that the City has
adequate money stored away
in its various accounts to fully fund the
Guild's proposal.
According to the Guild, the City has
historically transferred
significant moneys from the general fund to
special fund reserve
accounts.
The 1992 preliminary budget also shows a figure of
$1,419,699 for law enforcement. (City Ex.
48). The Guild
interprets the City's budgeting process as
calling for $424,935
more than is necessary to meet all of the
1991 police expenditures.
Since there were no additional personnel
added to the police budget
for 1992, the Guild reasons it is a safe
assumption that the 1991
expenditures reflect the 1992
expenditures. Therefore, the Guild
concludes there is more than sufficient
funds to meet the cost of
the Guild's wage proposal in the 1992
budget.
Turning
to the cost of living factor, the Guild argues
the five comparables chosen by the Guild
reflect favorably in the
area of cost of living. In eastern Washington employees must often
reside within the employing community. Guild Exhibit G1.8 shows
that housing costs for various jurisdictions
reflect that the cost
of living for Pullman is higher than any of
the other comparators.
In awarding a salary increase, the higher
cost of housing in
Pullman should be weighed in favor of a
higher salary increase than
proposed by the City.
For
all of the above stated reasons, the Guild submits
its offer represents a wage position which
reflects the statutory
intent and is within the means of the City
to fund.
C. The
City
The
City proposed a 2% wage increase effective January 1,
1990, and an additional 2% on July 1, 1990.
The City would
implement wage increases on January 1, 1991,
and January 1, 1992,
based on a cost of living formula derived
from the Seattle CPI for
all urban consumers. If the CPI exceeded 5%, a 1/2% increase would
be given for each full 1% increase until the
CPI reached 10%.
Adoption of the City's CPI formula would
yield a 5.5% increase for
January 1, 1991, and a 6% increase for
January 1, 1992. The
percentage increase over the base salary
would be 16.3% or $369 per
month.
The top salary for a police officer effective January 1,
1992, would be set at $2,632 per month. (City Ex. 36).
The
City argued that this increase would be in line with
the pay for top step officers in its
selected comparators. The
City's 1991, salary study revealed the
following:
CITY COMPARABLES
1991 TOP STEP OFFICER SALARY
1991
Top
City Step
Officer
Ellensburg $
2,475.00
Moscow,
ID $
2,511.00
Moses
Lake $
2,510.00
Pasco $
2,685.00
Walla
Walla $
2,562.00
W.S.U. $
2,493.00
Wenatchee $
3,000.00
Whitman
County $
2,065.00
AVERAGE $
2,537.63
PULLMAN OFFER $
2,483.00
(City
Ex. 34)
It
is the position of the City that Pullman is unique in
that it is characterized as being dominated
by a large tax exempt
employer which provides its own police
services. Further, it is
important to note that the City receives
neither property taxes nor
contractual payments from WSU to support
police services. Pullman
is a college town without a retail or
industrial base.
The
City's position on the appropriate comparators was
best summarized at page 2 in its hearing
brief as follows:
These
cities: Ellensburg, Moses Lake, Pasco,
Wenatchee,
Walla Walla, Moscow, Idaho, WSU,
and
Whitman County are
quite similar to
Pullman
in population, financial position,
size
of department, number of officers, part
one
offenses, and in various other comparison
basis
as well. They are all located east of
the Cascade
Mountains and are
rural/
agricultural. Four of the five cities are
distant
from other population centers. Only
Pasco
is near two other larger cities. Each
has
one or more college institutions adjacent
to
or in the City. Moscow is also a college
town
and only eight (8) miles from Pullman.
WSU and Whitman
County both provide
law
enforcement
services and are local, public
employers. For these reasons and others which
will
be submitted, the City requests that
these cities
and agencies be
used as
comparisons.
The
City asks the Arbitrator to reject Kennewick and
Richland as appropriate comparators because
they have much larger
populations than Pullman. In addition, Richland's industrial,
commercial and assessed valuation are vastly
different from and
superior to those of Pullman. Hence, the
City submits there simply
is no basis for selecting Richland and
Kennewick as comparable to
Pullman.
The
City also asserts the Guild's comparables
are
seriously flawed. According to the City, RCW
41.56.030(7) does not
limit comparisons to those jurisdictions
which have collective
bargaining and interest arbitration. Arbitrator Levak so
held in
the Walla Walla
case as did arbitrator Michael Beck in Cowlitz
County. (PERC No. 6151-I-85-135). Hence, it is proper to include
in a list of comparables jurisdictions who
do not have collective
bargaining and interest arbitration.
The City
also contends the
Guild's exclusion of
comparables from the local job market is
inappropriate. Present in
the Pullman job market are the jurisdictions
of WSU, Whitman County
and Moscow, Idaho. The evidence at the hearing indicated that
Pullman police officers work with, support
and train sworn officers
in the three local jurisdictions. Since the four sworn police
forces work closely with each other, it is
proper to include them
as points of comparison. All of the cities on the City list of
comparators fall within the population range
of 10,000 to 30,000.
Kennewick has a population of 42,780 and
Richland has a population
of 32,600 which the City believes
inappropriately skews the average
size of the comparators in a thinly veiled
move designed to obtain
the Guild's desired bargaining gains.
While
the City made no per se inability to pay argument,
it does not accept the Guild's position that
the City has adequate
money to fund a 30% increase in wages for
the police unit. The
economic picture in Pullman and the state
can only be described as
"grim and uncertain as to the near
future." The mayor's budget
message clearly reports the already
unfavorable financial standing.
(City Ex. 41). Given the stark reality of a local, national
and
state wide recession, the City's finances face a bleak and
uncertain future at best. An award in the amount proposed by the
Guild is excessive and would seriously
jeopardize the financial
standing of the City.
The
City also contends the Guild does not understand the
limitations on the ability of the City to
transfer funds between
accounts.
The equipment rental fund is designed to replace
equipment and is unavailable to fund police
salaries. Nor is the
City legally able to tap contributions from
the utilities fund or
transit in order to pay for police salaries.
Turning
to the factor of cost of living, the City submits
that police salary increases granted over
the last three contract
periods exceeded both the national and
Seattle CPI increases.
(City Ex. 71 & 72). Due to the fact that cost of living increases
are at the lowest point in 24 years, an
award in the amount claimed
by the Guild would far exceed rising costs
as reflected in the CPI
Index.
It is
also the position of the City
that it
is
appropriate to utilize a population figure
of 17,705 for Pullman.
WSU staffs its own police force to service
the WSU campus. By
virtue of the police services being
performed by WSU, City submits
it
is appropriate to deduct the 6,000
students who occupy
university housing on campus for purposes of
this proceeding. The
police work performed by members of this
Department on the WSU
campus is primarily that of backup or to
provide assistance to WSU
officers.
Concerning
internal parity, the City submits it has
reached agreements with its fire, library,
public works, recreation
and transit bargaining units. These signed contracts demonstrate
the City has dealt fairly and responsibly in
a manner satisfactory
to those other labor organizations. The contract entered into
between
the Guild and
Support Services includes
a package
comparable with what the City is offering
this unit. It is these
internal settlements that should establish
the guidelines and basis
for an award covering sworn police officers.
The
City submits that its offer compares favorably with
the average of the jurisdictions it has
submitted for purposes of
comparison.
When the salary settlements provided for the internal
and external comparators are evaluated, City concludes this
provides the basis for a salary award on the
terms offered by the
City.
D. Discussion
and Findings
At
the outset of this issue a few comments about the
statutory procedure are in order. RCW 41.56.460 refers to the
basis on which an interest arbitration award
should be formulated
as " standards or guidelines to aid it in
reaching a decision." The
Arbitrator is then directed to take
into "consideration" the
factors listed in the provision. The listed criteria are not
defined in the law. Arbitral authority has provided some guidance
to the application of the statutory factors
to particular cases.
The statute also provides that the
Arbitrator may consider 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."
This phrase allows the
parties and the interest arbitrator
considerable latitude in
determining what are the relevant facts on
which to base an award
to resolve a dispute.
The
factors identified in the statute are "standards or
guidelines" which cannot be applied
with surgical precision. The
relative weight to be given to any of the
criteria listed in the
statute is not defined. Further, it is important to note that this
Arbitrator
is responsible for applying the evidence to the
statutory factors even if the evidence
submitted by the parties is
incomplete, misleading, selective or
manipulative. Recognizing
these problems, it still remains the
obligation of this Arbitrator
to apply the record evidence to the criteria
set forth in the
statute.
In assessing the evidence and argument on the wage issue,
the Arbitrator has attempted to extract
facts from the record
evidence which provide reasonable and
credible support for this
award.
The starting point for the analysis of the evidence in this
case on the wage issue is
comparability. Both sides devoted the
majority
of their evidence
and argument to
the issue of
comparability. Evidence with respect to the other statutory
factors was minimal or nonexistent.
The
Arbitrator finds after review of the evidence and
argument as applied to the statutory
criteria that a 5.5% increase
on the 1989 base effective January 1, 1990,
is justified. For
1991, the base salary shall be adjusted an
additional 6%, effective
January 1, 1991. The 1991 base salary shall be increased by
7%.
Application of these percentage figures will
result in a top step
wage as follows:
1990 $2,387
1991 $2,530
1992 $2,707
The reasoning of the Arbitrator is set forth
in the discussion and
findings which follow.
The
threshold consideration on comparability is resolving
the dispute over what should be the
population figure for Pullman.
The Arbitrator finds that a population
figure of 23,000 should be
utilized for determining the jurisdictions
with which to compare
Pullman for making a wage determination.
Pullman uses a population
figure in the 23,000 range when it seeks
funds from the state or
federal government Pullman used a similar population figure in a
1988 bond issue. The signs posted by the City at the entrance
to
Pullman announce a population of
23,478. The Association of
Washington
Cities Survey of
Salaries lists Pullman with
a
population of 23,090. The only place the Arbitrator could discern
a listing of a population for Pullman of
17,705 was in the City's
argument at arbitration.
The
Arbitrator finds the City's
attempt to deduct
approximately 6,000 resident students from
the Pullman population
base to be without merit. While it is true WSU has its own police
force, WSU is within the jurisdiction of the
Pullman Police
Department.
As the record indicates, the members of this
bargaining
unit provide police
services where students
are
involved.
While the existence of a WSU police force might be a
mitigating factor in the population served
by the Pullman Police
Department, it in no way can serve as the
foundation to reduce the
police service area of Pullman by 6,000
persons.
The
next step in the analysis of the comparability issue
is to recognize both parties agree that
Pasco, Walla Walla and
Wenatchee are appropriate jurisdictions with
which to compare
Pullman for determining police wages. The 1991 populations of
these jurisdictions are 20,660, 27,020 and
22,080 respectively.
The Arbitrator is bound to honor the
stipulation of the parties
with respect to the three named cities.
The
parties have also stipulated that the appropriate
jurisdictions by which to set Pullman police
wages should come from
cities east of the Cascades. The statute
refers to "like employers
of
similar size on the West Coast of the
United States.
Arbitrators have interpreted the reference
to West Coast to mean
the states of Washington, Oregon, California
and Alaska. Since
Moscow, Idaho is not located on the West
Coast, it may not be
properly considered as a primary
comparator. The same would hold
true for WSU as it is a university as
opposed to a municipal
employer.
The university is not engaged in the business of
providing public service comparable to that
of the City of Pullman.
Whitman County suffers from a similar
problem in that it is a unit
of county government as opposed to a
city. In addition, Whitman
County deputies do not have the benefit of
the same collective
bargaining statute as is available for
Pullman police officers.
Ellensburg
has a population of 12,570 and Moses Lake has
a population of 11,420. Neither of those jurisdictions meet the
15,000 person test placing their sworn
personnel under the interest
arbitration procedure. This fact alone
argues against making these
two jurisdictions a primary comparator under
RCW 41.56.460(C)(i).
However, in the judgment of this Arbitrator
the jurisdictions of
WSU, Whitman County and Moscow, Idaho can be
properly considered
under the "other" factors element
of the statute as they are within
the immediate geographic area and labor
market of Pullman. In
addition,
these three agencies support and work together in
providing police services in the three
communities. Ellensburg and
Moses Lake are also entitled to some
attention under this provision
of the statute. These five jurisdictions serve as a counter
balance to the large cities of Kennewick and
Richland.
In
adopting the Guild's proposed list of comparators, the
Arbitrator recognizes that Kennewick and
Richland have larger
populations than Pullman. The fact that Richland is
10,000 greater in population and Kennewick
is approximately 20,000
greater in population still keeps the cities
in a reasonable
population range. Further, the population difference does not
detract from the fact they are Washington
cities located east of
the Cascades and are covered by the same
collective bargaining law.
Arbitrator Levak
in the Walla Walla award accepted the five same
cities which the Guild proposes for this
case. Pullman was listed
as a comparator for the Walla Walla case. By
extension it is
appropriate to include the same cities as
the primary comparators
for this interest arbitration. While not controlling, it is
relevant that the City utilized the 15,000
to 50,000 population
grouping of cities east of the Cascades,
when constructing the
appropriate salary for its mayor and City
superintendent.
The
Arbitrator adopts as the primary point of comparison
for measuring the level of police wages for
Pullman the following
cities:
Pasco
Kennewick
Richland
Wenatchee
Walla
Walla
Based
on the 1991 Association of Washington Cities Salary
Survey, the following population and wage
data reads:
POPULATION CITY TOP SALARY
20660 Pasco 2685
22080 Wenatchee 3000
27020 Walla Walla 2562
32600 Richland 2903
42780 Kennewick 2962
29028 Avg. 2822
Avg.
23090 Pullman 2263
26.0%
Diff. 25.0%
Diff.
(Ex.
G1.3(a))
A similar study for 1990 revealed an average
salary of $2,735 per
month or 21% above the Pullman average top
step salary. (G1.4).
A Guild summary of wage comparisons based on
"net hourly wages
asserted a wage increase ranging from 21.05%
to 28.65% wages
necessary to catch-up with the comparable
jurisdictions. (G1.6).
A
Guild summary of top step police officer increases for
1992 established:
SUMMARY 1992 INCREASES
TOP STEP POLICE OFFICER
Effective 1991 1992
Date % Increase Salary Salary
Kennewick 1/1/92 5.9% 2962 3137
Pasco
90% West Coast CPI 3 % 2695 2776
10/31/91 - Effective 1/1/92
Min.
3% - MAX. 6%
Richland 2903 In Negotiation s
Walla Walla 1/1/92 7.0% 2562 2742
Wenatchee 1/1/92 4.5% 3000 3135
Average 2824 2948
(G1.7(a))
The City provided no evidence of the amount
of increases set for
its list of comparator jurisdictions in
1992. Based on the City's
1991 figures the average top salary of
police officers in its list
of comparators was $2,537. (City Ex. 35).
While the
City argued strenuously
for internal
comparability on wages with its other
bargaining units, the City
did not provide the evidence of what the
1992 increases were for
those other bargaining units. The one exception was the Support
Services contract negotiated between the
Guild and the City. The
Arbitrator did note from a paragraph in the
1992 mayor 5 budget
message that all City employees be given a
6% increase in line with
the provisions contained in the current
labor contracts. (City Ex. 41).
The
Arbitrator rejects the Guild's proposal which would
contractually link the wages for Pullman
officers with that of the
five comparators. Pullman is a separate and
distinct jurisdiction.
As such, its wages should not be
contractually set as the average
of the five cities. Neither the statute or arbitral authority
support such a connection with other like
employers. It should be
recalled the statute refers to comparability
as a "guideline" to
consider in establishing wages.
Moreover,
adoption of the Guild's proposal would generate
a 20% increase for the first two years of
the contract. On its
face, two 10% successive increases is an
amount that would generate
excessive costs to the City. In addition, no evidence is present
in this record that 10% increases in 1990
and 1991 were the norm in
the five eastern Washington cities. Likewise, the City's offer of
2% and 2% in 1990, and 5.5% in 1991, is
unacceptable because it
will drive the already low wage level even
lower in the relative
standings of the like jurisdictions.
The average
top salary for
1992, of the
three
jurisdictions the City agrees are comparable
is $2,884. pursuant
to the City's proposal, the top salary in
1992, would be $2,632 or
$252 per month below the average. The average top salary of the
five cities for 1991, was $2,824. On the other hand, adoption of
the Guild's proposal would place Pullman
officers $99 per month
above the average for the three cities. The average top salary for
the four cities for 1992, iS $2,948. Richland
was still in
negotiations at the time of the arbitration
hearing.
The
Arbitrator was unconvinced Pullman should be the wage
leader for cities in the 15,000 to 50,000
population range east of
the Cascades. This is particularly true when the larger
cities of
Kennewick and Richland are included in the
primary comparator
group.
Absent from this record is any evidence Pullman should pay
its officers the highest wage of the
comparators.
The
goal of the Arbitrator is to award a wage package
which will make some effort in decreasing
the difference between
what is paid by this City to sworn officers
when compared to the
five other eastern Washington cities in the
15,000 to 50,000
population range. Even with the Arbitrator's award of $2,707
per
month, Pullman will rank last in the level
of pay for police
officers.
However, the salary
is competitive with the two
comparators both sides agree are
relevant. The award will place
Pullman $35 per month below Walla Walla and $65 per month below
Pasco sworn officers at the top step. Walla Walla
officers
received a 7% increase for 1992. On the other hand, Pullman
officers will be paid $428 per month less
than Wenatchee officers.
While
the Arbitrator was not provided with the 1992
salaries on the cities list of comparators,
the 1991 salary set by
this award will be $2,530 per month or $7
below the average top
step in the group of jurisdictions with
which the City seeks to
compare itself.
The
constitutional and statutory authority of the City
was not an issue placed before the
Arbitrator and therefore not a
factor in this award.
Regarding
the factor of stipulations of the parties, the
stipulation that Pullman should compare
itself with cities east of
the Cascades was accepted by the Arbitrator
and used to select the
list of comparators.
Regarding
the cost of living factor, the Arbitrator finds
this criteria of little assistance because
of the lack of current
and meaningful CPI data included in the
record of this case by the
parties.
The City did attach some CPI data to its closing brief.
Due to the fact this CPI data was not
admitted into evidence at the
hearing, the Arbitrator did not consider
this exhibit.
Regarding the
factor of changes
of the foregoing
circumstances during the pendency
of the proceedings, this factor
was of no relevance in formulating the
award.
Regarding
the "other factors" guideline, three elements
were of importance in coming to an
award. Pursuant to this
criteria, the Arbitrator reviewed the
ability to pay the proposed
wage increase, the City's proposed list of
external comparators and
internal comparators. The City made no "per se inability to
pay
argument" in this case. However, the
City correctly maintained the
amount of money in the budget to fund
increases, the probable
impact on City services and projects and the
long term impact of
the salary award are valid elements to
consider. Further, the
City's position that the current economic
climate argues against a
wage increase that is out of touch with
economic conditions was
persuasive.
In other words, this Arbitrator has avoided making an
award that would have a crippling effect on
the ability of
to maintain essential governmental services.
As
previously discussed, the Arbitrator considered the
City's proposed list of local comparators and
cities less than
15,000 as a check and balance on the five
cities used as the
primary comparators to establish the
wage level for sworn police
officers in
While
the City offered considerable argument with respect
to internal comparators, the record was void
of evidence of how the
other bargaining units such as fire, transit
and public works
compare
in wages with their counterparts performing similar
services.
The best the Arbitrator could ascertain with respect to
1992 wage increases for other City employees
was from the mayor's
budget message. The budget message revealed
that 6% increases were
the norm.
The Arbitrator's award of 7% in 1992 while slightly
higher than the 6% figure is in line with
the internal comparables
and the 6% offered by the City.
The award of this Arbitrator will establish
a salary
schedule that is within the range of
reasonableness when compared
with the five cities adopted as the primary
point of reference with
which to set
not out of line with the jurisdictions
offered by the City for the
purpose of establishing wage comparability.
AWARD
The
Arbitrator finds after review of the evidence and
argument as applied to the statutory
guidelines the wage schedule
for the 1990-1992 contract period shall be
as follows:
1. Effective
January 1, 1990, the base salary
shall be increased by 5.5%.
2. Effective
January 1, 1991, the 1990, base
salary shall be increased by 6%.
3. Effective
January 1, 1992, the 1991, base
salary shall be increased by 7%.
ISSUE 2: Guild Security
A. Background
Article
1 of the 1987-89 contract provides for union
security but does not require employees to
join the Guild. The
Guild proposed new language which would
require employees covered
by this Agreement to join the union. Employees who are bona fide
members of a church or religious body whose
religious tenets or
teachings prohibit membership in employee
associations would be
excused from joining the Guild. The City proposed a modification
to Article 1 but would continue the
voluntary nature of Guild
membership for employees.
B. The
Guild
The
Guild argued that its proposal should be awarded
because there has been no objection from any
employee to mandatory
Guild membership. The record evidence
established that 100% of the
bargaining unit belongs to the Guild. According to the Guild, the
100% membership speaks in favor of the
Guild's proposal. Since the
Guild bargains for all members of the
bargaining unit it is vital
that the Guild receive not only the
financial support, but personal
participation which mandatory membership
brings.
Therefore,
the Guild concludes that since it is legally
required to bargain for all employees
covered by the Collective
Bargaining Agreement, it is appropriate that
it have the financial
support and participation of all employees.
C. The
City
City
takes the position that mandatory union membership
should not be included in this Collective
Bargaining Agreement.
City Exhibit 44 reveals that mandatory union
membership or payment
of dues does not exist in any other City
bargaining unit. In
addition, the City's evidence reflected that
this provision does
not exist in other local comparable
agencies. The City's proposed
language is consistent with that already
agreed to by the Guild in
their separate contract covering Support
Services. It would be
grossly inconsistent to have a mandatory
provision in this contract
and not in the Support Services contract.
The
City also argues that there is no demonstrated need
for mandatory membership in the Guild. The union's own evidence
established that virtually all sworn
employees have voluntarily
joined the Guild. Thus, the Guild's proposal should be rejected
and the City's proposal awarded.
D. Discussion
and Findings
The
Arbitrator finds the Guild has made its case that
financial support should be required from
all members of the
bargaining unit except those who are excused
from membership in
employee associations because of bona fide
religions tenets. The
Arbitrator was not convinced that all
employees should be required
to join the Guild. Compelling employees to be members of the
Guild
will not necessarily insure participation in
Guild activities.
Hence, the Arbitrator will award modified
language which requires
employees who elect not to join the association to make a
contribution in lieu of union dues.
The Guild
has incurred considerable
expenses in
attempting to bargain its first labor
contract with the City. All
of the members of the bargaining unit will
benefit from the efforts
of the Guild, not just those who elect to
join the Guild now or in
the future.
The fact the Guild has 100% membership argues in favor
of requiring Guild membership or a
contribution in lieu of dues.
In a small unit such as this, it is
imperative all employees
covered by the contract provide financial
support to its collective
bargaining representative.
The
Guild has the legal duty to represent all members of
the bargaining unit. Several recent court decisions have imposed
very stringent standards on a union's duty
to fully and fairly
represent all members of the bargaining
unit. Regardless of
membership in the Pullman Police Officers'
Guild, the Guild has a
legal obligation to defend the rights of the
bargaining unit
member, whether or not they provide support
to the Guild. Members
who do not contribute toward the cost of
collective bargaining also
receive the value of improved salary and
fringe benefits in
addition to improved working conditions
resulting from contract
negotiations. It is a reasonable and fair conclusion that
all
employees who benefit from the services of
the Guild should be
required to contribute towards the cost of
maintaining the services
of collective bargaining and contract
administration.
The
language awarded does not require employees to join
the Guild.
It only demands that all members of the bargaining unit
pay for the cost of collective bargaining
and related contract
administration. The language awarded by the Arbitrator does
not
require individuals to attend meetings or to
take part in Guild
activities.
However, all members of the bargaining unit should be
expected to contribute financial support to
the Guild for the
purpose of performing the duties of an
exclusive representative of
employees in dealing with the City on
labor/management issues. For
these reasons, the Arbitrator finds that
Article 1 be modified to
require a payment in lieu of dues for those
employees who do not
choose to join the Guild.
AWARD
The Arbitrator awards that Article 1 be
amended to read:
1. Membership:
Membership or non-membership
in the Guild shall be the individual choice
of
employees covered by this Agreement.
However,
any employee who chooses not to belong to
the
Guild shall make a payment in lieu of dues
to
the Guild.
2. New
Employees: A newly hired employee
shall
determine within thirty
(30) days
whether he or she wishes to (1) join the
Guild
and pay Guild dues and fees or (2) decline
to
join
the Guild and
pay a service
fee
equivalent to regular Guild initiation fees
and
dues as a
consideration toward the
administration of this Agreement.
3. Equivalent
Dues Payment: In accordance
with RCW 41.56, objections to joining the
Guild which are based on bona fide religious
tenets or teachings of a church or religious
body as may be determined by the Public
Employment
Relations Commission will
be
observed.
Any such employee shall pay an
amount of money equivalent to regular Guild
dues to a nonreligious charity mutually
agreed
upon by the employee affected and the Guild.
4. Failure
to Comply: An employee who is
required
to maintain membership
in good
standing and fails to do so and an employee
who is required to pay a service fee and
fails
to do so under the provisions of this
Article,
shall be terminated upon notice of such fact
in writing
from the Guild
to the City.
Termination of such an employee shall become
effective within thirty (30) days from the
date the City received the notice, unless
the
employee has remedied the delinquency within
said thirty (30) day period provided that
the
habitual failure to timely pay dues, service
fees or charitable contributions shall, upon
the request of the Guild, result
in the
discharge of the offending employee.
ISSUE 3: Supervisory Duties
A. Background
Status
quo is represented by Article 6 of the 1987-89
Agreement which provides that an officer
assigned to supervisory
duties in an acting capacity shall receive
the difference between
the minimum sergeant rate of pay and
patrolman I rate of pay for
actual hours worked. The term "Acting Sergeant" is used
when a
bargaining unit member is temporarily
assigned to perform the
supervisory duties of a sergeant. Pursuant to the language in
Article 6 it is the City's discretion of
whether or not to
designate an officer as an Acting Sergeant.
The
Guild proposed language to require a supervisor to be
designated when the patrol supervisor in
unavailable. The Guild's
proposal would define when the regular
supervisor is not available.
The City proposed modified language which
would continue the
discretion of management to designate an
acting supervisor when the
regular supervisor in unavailable.
B. The
Guild
The
Guild proposed language to state as follows:
It
is recognized that some employees covered
under
this Agreement shall perform the duties
of
a supervisor. Nothing in this Agreement
shall
in any way interfere with carrying out
their
supervisory duties.
Police
Officers, assigned by the Chief or
his/her designee
to perform the duty
of
"Acting
Sergeant" shall receive the difference
between
the minimum Sergeant rate of pay and
Patrolman
I rate of pay for actual hours
worked.
The
Guild's proposal on this issue arose out of a
situation where a sergeant was assigned to
light duty and was
unable to respond to the scene of a
crime. The City chose to have
the sergeant remain as the shift supervisor
even though he was
unable to respond. According to the Guild, the officers at the
scene were jeopardized as the result of the
inability of the
supervisor to respond to the situation.
The
Guild next pointed to the testimony of Chief
Weatherly who agreed there should be an
officer in charge when
there is not a supervisor available. The
Chief also testified that
he expected the sergeant to appoint such an
officer in charge if he
were not there. From the viewpoint of the Guild, the parties
are
in agreement as to the need for an officer
to be assigned for on-
the-scene supervision if a supervisor is not
available.
In
sum, the Guild submits this is a safety issue, and not
a monetary issue. While there is a monetary
component in the sense
that those officers placed in charge of the
scene shall receive
extra compensation, the motivating force for
this proposal is
officer safety. Thus, the Arbitrator should award the
language
proposed by the Guild.
C. The
City
The
City proposed language to read as follows:
It
is recognized that some employees covered
under
this agreement shall perform the duties
of
a supervisor. Nothing in this agreement
shall
in any way interfere with carrying out
their
supervisory duties.
Police
officers assigned by the Chief of
Police
or his/her designee to perform the duty
of
"Officer in Charge" (O.I.C.) shall receive
the
beginning sergeant rate of pay.
An
O.I.C. may be assigned when a Patrol
Supervisor
is not available. An officer
acting
as O.I.C. will be considered to have
been
acting in that capacity for actual time
worked
with a minimum of one (1) hour.
"Not
available" may be considered to mean that
the Patrol
Supervisor is unavailable
to
communicate
direction or respond to a field
scene
when needed.
The
City maintains that the Guild's proposal would
require it to appoint an acting officer in
charge without regard to
the circumstances of the individual
case. The City's proposal to
continue management discretion to assess
whether or not it was
necessary to appoint an officer in charge
should be continued.
Adoption of the Guild's proposal would
remove the decision making
responsibility from the Chief and place it
in the Guild.
The
City next points out that when an officer is
designated as the officer in charge it
carries with it a higher
rate of pay for that officer. In the view of the City, higher pay
and the assignment connected thereto should
be controlled by
management rather than an automatic contract
entitlement.
It
is also the position of the City that the Guild's
explanation of "Not available" are
words to grieve and an attempt
to mandate when and how officer in charge
assignments are to be
made.
If the language proposed by the Guild were adopted it would
result in a proliferation of officer in
charge assignments and
grievances challenging the City when it did
not appoint an officer
in charge at a particular problem. The City believes that the
Guild's four definitions of "Not
available" are unneeded and will
unduly restrict the exercise of management
prerogatives to deal
with situations on a case per case
basis. Therefore, the
Arbitrator should reject the Guild's
proposal and award the City's
language.
D. Discussion
and Findings
The
Arbitrator finds the Guild's proposal creates an
unreasonable restriction on management's
right to determine when
and if supervision at a crime scene is
necessary. Pursuant to the
Guild's proposal an officer in charge would
be required without
regard to the individual circumstances
present at the crime scene
or the availability of the patrol
supervisor. In the judgment of
this Arbitrator, the need to provide police
services and deploy
human resources in the most efficient manner
possible should not be
restricted in the manner proposed by the
Guild.
The
Guild's one example cited to support its proposal
does not rise to the level to justify the
unnecessary restriction
on managerial prerogatives. Adoption of the
Guild's proposal would
result in a proliferation of officer in
charge assignments and
increased cost for police services. An officer in charge would be
required to be assigned even though the
patrol supervisor is
capable of handling the situation. Thus, the Arbitrator was not
persuaded that a substantial restriction on the ability of
management to determine the level of
supervision should be placed
into this contract.
Accordingly, the Arbitrator will award the language
proposed by the City which continues the
present practice of
permitting management to determine whether
or not an officer in
charge is needed.
AWARD
The
Arbitrator awards that Article 6 be amended to read
as follows:
It
is recognized that some employees covered
under
this agreement shall perform the duties
of
a supervisor. Nothing in this agreement
shall
in any way interfere with carrying out
their
supervisory duties.
Police
officers assigned by the Chief of
Police
or his/her designee to perform the duty
of
"Officer in Charge" (O.I.C.) shall receive
the
beginning sergeant rate of pay.
An
O.I.C. may be assigned when a Patrol
Supervisor
is not available. An officer
acting
as O.I.C. will be considered to have
been
acting in that capacity for actual time
worked
with a minimum of one (1) hour.
"Not
available" may be considered to mean that
the Patrol
Supervisor is unavailable
to
communicate
direction or respond to a field
scene
when needed.
ISSUE 4: Overtime
A. Background
The
subject of overtime is addressed in Article 9 of the
1987-89 Collective Bargaining
Agreement. The Guild proposed
substantial changes in the overtime article.
The City offered some
minor changes in the current language. However, for the most part
the City is proposing continuation of
present contract language.
B. The
Guild
The
Guild proposes to increase the amount of compensatory
time which may be accumulated from 40 hours
to 80 hours. Pursuant
to Section 9.02 employees with authorized
overtime entitlements are
allowed to request to be compensated with
time off at the time and
one-half rate instead of monetary
compensation. The Guild would
also amend the holiday overtime which
currently stands at two times
the regular rate of pay to time and one-half
the holiday rate of
pay.
Section
9.03 compels the City to pay an employee at the
overtime rate calculated to the nearest
one-quarter hour if that
employee is ordered to remain on duty at the
end of the shift. The
Guild proposed that an employee who is
ordered to remain on duty or
report earlier than the regular shift would
be entitled to two
hours at the applicable overtime rate in
addition to the overtime
for hours actually worked. The Guild would also modify Section
9.04 to require a minimum of 2 hours of
overtime when an officer is
requested to report on a day off, leave,
etc. or after going home
from work.
When the employee is ordered to report to duty on a day
off, the employee will be paid a 4 hour
allowance at the overtime
rate in addition to overtime for the hours
actually worked.
The
Guild also proposed to add new language to the
existing overtime provision. Under the Guild's proposal an
employee would have to be given at least
seven working days notice
prior to any regular schedule or overtime
schedule changes. If the
notification is less than the required seven
days, the employee
would be considered as being ordered to work
and the provisions of
Section 9.03 and/or 9.04 would apply. The Guild also proposed new
language that when an employee is returned
to work with less than
12 continuous hours off, that employee would
be considered to have
worked continuously from the previous work
period. Compensation
for those hours would be at the overtime
rate.
The
Guild proposed a new Section 9.08 on the subject of
standby.
An employee who is "requested" to be on standby would be
paid a 2 hour allowance at the applicable
overtime rate in addition
to the hours requested to maintain standby
status. An employee who
is ordered to be on standby would be paid a
4 hour allowance at the
overtime rate in addition to the hours
ordered to maintain standby
status.
The
Guild frames the overtime issue as a "safety, time
off issue" rather than a monetary
issue. According to the Guild,
the City has historically substituted
overtime for additional
officers.
The City continuously overspends its overtime budget.
The Guild asserts that the overtime required
by the Department is
not only excessive, but dangerous.
It
is against this background that the Guild has proposed
language which is punitive in nature to
force the City to
reconsider its excessive reliance on
overtime to make-up for
staffing shortages. In addition, the amount of overtime being
worked by members of this bargaining unit
creates a situation of
officer fatigue causing a serious danger to
both the public and the
officers. Testimony was also presented that
the impact of overtime
is seriously disruptive to the family life
of members of this
bargaining unit. Since overtime is mandatory in this
Department,
the City should be required to adequately
compensate officers for
working excessive overtime due to the fact
the City has refused to
increase the number of police officers.
The
seven day notice prior to any regular schedule change
is necessary to give officers a reasonable
amount of time to plan
their family and personal lives. The seven day notice would
subject the City to a monetary penalty for
its violation. The City
would still be able to change the schedule
in order to meet its
staffing needs, but would be required to pay
a monetary penalty for
failing to give the seven day notice.
The
Guild argues in support of its 12 continuous hours
off provision that fatigue presents a real
danger for officers and
the public.
A requirement that an officer be given at least 12
hours off is reasonable protection for the
safety of officers and
the public.
The monetary penalty for failing to comply with the 12
hour off provision will compel the City to
provide additional
staff.
For all of the above stated reasons, the Arbitrator should
award the Guild's proposal as an appropriate
safeguard for officer
safety.
C. The
City
The
City rejects the Guild's proposals on three main
grounds.
First, the Guild's proposal would increase the overtime
cost to the City by a significant
amount. Second, the doubling of
the amount of compensatory time accrual
maximum would increase an
already severe scheduling problem. Likewise, the seven day notice
of a shift change is not workable due to the
nature of police work.
Third, the evidence on comparability does
not support the Guild's
proposals .
In
sum, the City believes the Guild's overtime proposal
in total, is unreasonable and would have an
excessive cost impact
on the City.
Therefore, the Arbitrator should award the City's
proposal which essentially continues
existing contract language.
D. Discussion
and Findings
The
Arbitrator concurs with the City that adoption of the
Guild's proposal would be excessive in total
cost and create an
unreasonable restriction on the ability of
the City to provide
police services. The record does establish that the members of
this bargaining unit do work substantial
amounts of overtime which
intrudes on their ability to maintain a life
separate and apart
from the Police Department. As such, there is room for some
modification in the overtime article which
would not create
excessive costs or unduly restrict the
Department's ability to
maintain its staffing levels.
The
Guild's proposal to double the amount of compensatory
time available to members of this unit is
excessive and should not
be adopted.
A 20% increase in the maximum amount of compensatory
time that could be accrued would set the cap
at 48 hours. The
availability of a additional 8 hours of compensatory
time off
should not unduly restrict the ability of
the Department to
maintain adequate police services. The Guild proposal to increase
holiday overtime to time and one-half the
holiday rate of pay is
excessive.
Employees who work holiday overtime are paid an
adequate amount at two times the regular
rate of pay.
The
Guild's proposal to modify Section 9.03 to provide a
minimum 2 hour allowance at the applicable
overtime rate in
addition to the hours worked at the
applicable overtime rate when
an employee is ordered to remain on duty at
the end of his shift or
to report
early goes beyond the acceptable
limit for such
circumstances. Under current contract language an employee
who
remains after the end of the shift is paid
for time actually
worked, calculated to the next one-quarter
hour. This is an
acceptable method to deal with an employee
who is required to work
beyond the normal shift. The contract is
silent with respect to an
employee who is called to work before the
scheduled shift. It is
reasonable to compensate an officer who is
required to report early
with an minimum amount of overtime
compensation. A 1 hour minimum
is reasonable for an officer who is expected
to report to work
early on a particular shift.
Section
9.04 requires the City to pay a minimum of 2
hours at the applicable overtime rate for an
employee who is
ordered to report for duty on the day off or
after going home from
work.
The Guild's proposal to require minimum compensation for an
employee who is "requested to report to duty" is
vague and
uncertain.
The City should only be required to provide minimum
compensation when it orders an emplqyee to report for duty on a day
off or after going home. A minimum callback payment of 3 hours is
the standard in the comparables offered by
the Guild. Hence, the
Arbitrator will increase the existing
minimum callback time to 3
hours.
A
3 hour minimum is warranted to compensate the officer
for disruption to his or her personal life
on a day off or holiday.
Further, the 3 hour minimum is justified as
recognition of the fact
the officer must not only work the hours but
prepare for duty and
travel to and from the work site for an
additional tour of duty.
Accordingly, it will be the award of the
Arbitrator to increase the
2 hour minimum callback to 3 hours.
The
Guild proposal to require a seven day notice prior to
any regular schedule change represents an
undue restriction on the
ability of the City to staff the police
force. Absent from this
record is any evidence members have been
subjected to frequent and
repeated changes in shift schedule without
adequate notice. Nor is
there evidence that employees have been
required to work on a
regular basis without a minimum of 12 hours
between shifts. Hence,
the Arbitrator rejects the Guild's proposal
to add a new section
9.07.
The
final proposal of the Guild to add standby pay in
Section 9.08 should not become a part of the
Collective Bargaining
Agreement.
The record does not reflect that employees are
requested to standby or be at the beckon
call of Department
management.
AWARD
The
Arbitrator awards with respect to overtime as
follows:
1. Section 9.01 shall remain unchanged in
the
successor
contract.
2. Section 9.02 shall be amended to
provide
for
a maximum accrual of compensatory time off
at
48 hours.
3. Section 9.03 shall be amended to read:
An
employee ordered to remain on duty at the
end
of his regular shift or to report early
shall
be paid at the applicable overtime rate
for
time actually worked, calculated to the
nearest
one-quarter (1/4) hour.
A
new paragraph would be added which states:
An
employee who has left the workplace and who
is
called back to duty for a period of time
which
is less
than two (2) hours,
shall
receive
a minimum of two (2) hours of overtime
compensation.
4. Section 9.04 shall be modified to read:
An
employee called to report to duty on his
day
off or holiday shall be guaranteed a
minimum
of three (3) hours at the applicable
overtime
rate.
5. Section 9.05 shall remain unchanged in
the
successor
contract.
6. Section 9.06 shall remain unchanged in
the
successor
contract.
7.
The Guild's proposals to add new
language
in
9.06, 9.07 and 9.08 shall not become a part
of
the Collective Bargaining Agreement.
Further, if the holiday falls on a day in
which the officer is
required to work, the officer should receive
the regular pay, plus
an extra days pay, and if overtime is
required, the overtime rate
be one and one-half times the regular pay.
According to the Guild,
if an employee is required to work on the
holiday, an employee
should receive recognition of that fact in
the form of additional
compensation. By making a monetary distinction between a
worked
and a non-worked holiday, the Guild submits
it would encourage the
City to reschedule an employee and grant an
employee's request for
time off.
The
City's proposal is defective in that it makes no
distinction between the employee who is not
required to work and an
employee who is required to work when it
comes to monetary
compensation. Therefore, the Arbitrator should sustain the
Guild
and award its proposal.
C. The
City
The City takes the position that present contract
language should be continued with a minor
change it has proposed.
Because members of this bargaining unit
enjoy a competitive holiday
benefit, the existing contract language
should be continued. There
is no justification for increasing the cost
to the City by awarding
the language proposed by the Guild.
Turning
to the Guild's proposal to add an additional
holiday if a holiday is so proclaimed by the
state, federal or City
government, City submits that this type of
holiday should be
handled at the time such declaration of a
holiday is made. The
ISSUE 5: Holidays
A. Background
Article
10 of the existing contract incorporates ten
designated holidays and one floating
holiday. If a holiday falls
during the employee's scheduled vacation,
employee's day off or if
the employee is scheduled to work a holiday,
the employee is given
another work day off during the month or
with the approval of the
Chief
of Police have
eight hours added to
the employee's
compensatory time bank. Neither party proposes to change the
number of holidays available for employees.
However, the Guild did
propose language which would grant an
additional holiday if such
holidays were created by declaration,
emergency or proclamation of
the City.
The Guild would also provide additional compensation
when an employee worked on a holiday or the
holiday fell during the
regular day off. The City proposed to continue current
contract
language with the addition of
language which would require
personnel working shift work to observe the
four traditional
holidays.
B. The
Guild
The
Guild proposed to add language which would add an
additional
holiday "created by
declaration, emergency or
proclamation of the City." The Guild reasons that if the federal,
state or City government declares a day a
holiday, a police officer
should be entitled to receive the holiday just
the same as other
employees who enjoy the benefit. The
contract between the City and
the firefighters grants an additional
holiday if the day is
declared to be such by the mayor. While a different holiday
schedule is a rare occurrence, the police officers
of this City
should
not be excluded
from receiving additional
holidays
established by the state, federal or City
governments.
The
Guild also proposed to add new language to the
contract which stated:
*
* *
If
the employee's regular day off falls on a
holiday,
she/he shall receive the equivalent
of
an extra day off, in comp time or annual
leave
at their option, for said holiday. (By
way
of illustration, a person working (5) 8
hour
shifts during a week will receive 8 hours
of
comp time or annual leave.)
At
the employee's option, subject to the
approval of
the Chief or his designee,
holidays
may be taken off and not worked.
Holidays
on which the employee elects not to
work
will be compensated for in comp time at
the
same rate as those worked. (By way of
illustration,
the day off plus an additional 8
hours
of comp time.)
An
employee whose schedule is changed or is
required
to take the holiday off will be
compensated
as a day off plus an additidnal 8
hours
of comp time.
Employees
working overtime on a holiday will
have
their overtime rate based on the holiday
rate
of pay, for all overtime hours worked.
The
essence of the Guild's proposal is that if a holiday
falls on a day off or during an employee's
vacation, the officer
should receive, in addition to regular pay,
either eight hours
compensatory time or annual leave at the
employee's option.
City should not be locked into granting an
additional holiday
simply because another agency declares a
holiday.
On
the issue of holidays falling within scheduled
vacation or days off, the City maintains its
proposed language is
simpler to administer and less costly
overall. The Guild's
proposal would complicate the computations
and make it more
difficult to administer the language. Regarding holidays that are
worked, the City argues the present system
has served the parties
well.
The contract should not be complicated with the Guild's
vague and confusing language.
In
sum, the City submits the Guild's proposal should be
rejected as unnecessarily adding to the
overtime costs and
injecting confusing language into the
contract.
D. Discussion
and Findings
The
Arbitrator disagrees with the Guild's position that
it should have a holiday when such is
declared by either the
federal or state government. The City is an independent political
entity which should not be automatically
subjected to holidays
declared by either the state or federal
government. The fact that
a federal or state worker may get an
additional holiday is not
sufficient justification to grant the same
to a City worker.
However, the Arbitrator was persuaded that
if the City declares an
additional holiday that members of this
bargaining unit should be
entitled to that holiday without additional
negotiations. The
precedent for this is set in the firefighter
contract. The
Arbitrator will award language identical to
that contained in the
firefighter contract mandating an additional
holiday when it is so
declared by the mayor of
A
comparison of either the City's list of comparables or
the Guild's list of comparable cities
establishes that the members
of this bargaining unit enjoy a competitive
number of paid
holidays. This fact argues against the
increase in the cost of the
holiday benefits which would follow with the
adoption of the
Guild's proposals. The Arbitrator has awarded salary increases
which will increase the compensation for
members of this bargaining
unit. There is little justification for
increasing the cost to the
City by adding a provision that will result
in higher costs to fund
the holiday benefits.
Present
contract language requires that an employee who
is on a scheduled vacation or on a day off
is entitled to
recognition for the designated holiday. The
contract provides that
such an employee will receive a scheduled
day off in recognition of
the holiday falling during a vacation or day
off. Further, with
the approval of the Chief of police, an
additional eight hours can
be added to the employee's compensatory time
bank. While there is
some merit to providing additional
compensation to employees who
work on a scheduled holiday, it is the
conclusion of the Arbitrator
that the time is not ripe for such increase
in the value of the
holiday benefit. None of the comparator contracts support an
increased overtime rate for all holidays
worked.
The
Arbitrator will award the continuation of present
contract language with the addition of the
language that should a
holiday be declared by the mayor of
unit would receive the additional holiday.
AWARD
The
Arbitrator awards that Article 10 should be continued
in the new contract with the addition of
language to state:
1. The employee shall also have a holiday
on
any
day so declared by the mayor of
2. All personnel working shift work will
observe
the traditional holidays as follows:
January
1 - New Year's Day
July
4 - Independence Day
November
11 - Veterans Day
December
25 - Christmas
ISSUE 6: Vacations
A. Background
The
vacation benefit is contained in Article 11 of the
existing contract. Both parties are proposing to continue the
existing vacation allotment. The difference in this issue centers
over the amount of time employees should be
allowed to accumulate
with respect to vacations. Article
11 allows employees to
accumulate
"up to a maximum of twenty-five (25) days vacation
time."
The City proposed to continue current contract language.
The Guild proposed to increase the amount of
vacation time which
could be accumulated up to a maximum of 35
days of vacation time.
The only issue before the Arbitrator on
vacations is whether or not
accumulation should be 25 days or 35 days.
B. The
Guild
The
Guild takes the position that its proposal to
increase the accumulation of vacation from
25 to 35 days is
supported by comparability. The maximum that
can be accumulated in
Wenatchee is 50 days, Richland 37.7 days,
Pasco 24 to 40 days,
Kennewick 35 days, and 1 week from the
previous year in Walla
Walla.
The
gives 20 days vacation after 10 years of
service, a total annual
leave that is much higher than the other
comparables.
C. The
City
The
City takes the position that both internal and
external comparators support retention of
the 25 day maximum
accumulation of vacation time. According to the City, vacation
hours should be used to reduce job stress
rather than build up to
excess.
Increased absences due to vacation also create scheduling
problems and increase the City's overtime
costs. If an employee
with a large amount of vacation accrual
terminates with the City,
an additional financial burden is placed on
the tax payers because
the vacation time is not used but must be
paid for in cash. The
practice within the City is to allow
employees to accumulate up to
a maximum of 25 days vacation time. That standard should be
continued for members of the police
bargaining unit.
D. Discussion
and Findings
The
Arbitrator finds that a slight increase in the amount
of time which employees will be allowed to
accumulate for vacation
is justified. While the City's evidence on internal
comparators
supports its position, the evidence of
either the City or the Guild
on the external comparators supports an
upward adjustment in the
maximum
amount of vacation
time which can be
accumulated.
Ellensburg, Pasco,
significantly more vacation time to be
accumulated. Likewise the
Guild's evidence from
provide for substantially higher
accumulation rates than is present
in this contract. The Arbitrator will award an increase in the
maximum accumulation rate to 30 days
effective January 1, 1992. An
increase of 5 days is supported by the
external comparators and
will be consistent with the internal
comparators.
AWARD
The
Arbitrator awards that existing contract language be
continued
except that the
paragraph providing a
maximum
accumulation of vacation time at 25 days be
amended to state as
follows:
Effective
be
allowed to accumulate up to a maximum of
thirty
(30) days vacation time.
ISSUE 7: Premium Pay
A. Background
Article
21 of the existing Agreement provides premium pay
for officers who work swing or graveyard
shift. Premium pay for
swing shift is $15 per month and $20 per
month for graveyard shift.
The sole remaining issue in dispute is the
pay differential that
should be established for swing and
graveyard shifts. The City
would continue the existing amount of
premium pay while the Guild
would increase the premium pay to $50 per
month for swing shift and
$100 per month for graveyard shift.
B. The
Guild
The
Guild notes at the outset that while the title of the
article
is premium pay the
issue is really
one of shift
differential for officers who work swing and
graveyard shifts. The
Guild suggested that the Arbitrator might relabel this article to
reflect its true character. The Guild proposed to increase the
shift differential for swing shift to $50
per month and graveyard
to $100 per month.
The
evidence established that the City agreed to a shift
differential of $50 per month per swing
shift and $100 for
graveyard shift in the pullman
Police Support Services staff
contract.
All the Guild is seeking by this proposal is to achieve
parity for the police officers with the
other Guild bargaining
unit.
It is a proposal the City has the ability to fund. Thus,
the Guild's proposal for increasing the
shift differential should
be granted.
C. The
City
The
City proposed that the differential for shift work
should remain unchanged. While it is true the City agreed to
increase the shift differential for Support
Services, the higher
premium pay was an incentive for settlement
at a wage increase
lower than this unit is seeking.
The
City next argues that the existing shift differential
exceeds that of its comparable
jurisdictions. Ellensburg, Moses
additional $14.44 per month and Wenatchee
pays $30 per month.
(City Ex. 55 & 56). Even if the Guild's comparables are accepted,
the present contract provides the shift
differential which exceeds
the jurisdictions cited by the Guild. (City Ex. 57).
D. Discussion
and Findings
On
its fact the shift differential of $15 per month for
swing and $20 per month for the graveyard
shift is meager and
inadequate compensation for officers working
non-traditional hours.
The City recognized this fact when it
increased the compensation to
Support Services personnel to $50 and $100
for working swing and
graveyard shifts.
The
City objects to increasing the shift differential for
this group of employees on the ground the
higher premium pay was an
incentive for settlement in the Support
Services contract. There
is no evidence in the record which supports
that proposition other
than the fact the parties did in fact agree
to a certain level of
shift differential pay. The Support Services
staff has enjoyed the
increased premium pay level since
City's position as having some validity, the
Arbitrator will make
the increase in shift differential effective
recognition that differences are present in
the total compensation
packages available to the two groups of
employees. The Arbitrator
will also reduce the amount of the increase
to $35 per month for
swing shift and $60 per month for graveyard
shift.
The
controlling factor on this issue is internal parity.
The non-uniformed employees covered by the
Support Services
contract work in conjunction with the
uniformed officers on swing
and graveyard shifts. There is no reason to establish different
shift differentials for employees working
the same shifts to
provide police services for the citizens of
Pullman. With the
exceptions of the effective date for change
in premium pay and
reduced amounts, the Arbitrator will award
the language contained
in Article 24 of the Support Services
contract. The increase in
shift differential for uniformed officers recognizes
that uniformed
officers should maintain a closer
relationship in compensation paid
for shift work to the non-uniformed
employees that would result
from adoption of the City's proposal. The parties reached
tentative agreement on the second paragraph
contained in Article 25
of the City's proposal. Hence,
it is unnecessary for the
Arbitrator to deal with that aspect of the
dispute on this issue.
AWARD
The
Arbitrator awards new language to be included in
Article 25 to state:
Effective
swing
or graveyard shift shall receive premium
pay
in accordance with time worked. Premium
pay
shall be thirty-five dollars ($35) per
month
for swing shift and sixty dollars ($60)
per
month for graveyard shift. Part-time
employees
shall receive premium pay on a pro
rata
basis.
The Arbitrator also awards that the title to
Article 21 should be
changed to Shift Differential.
ISSUE 8: Training Standards
A. Background
Article 22
of the current
Agreement is entitled
"Maintenance of Standards." The
parties have agreed that the title
to Article 22 does not correctly represent
the subject of the
article.
The parties have agreed to retitle the article
as
Training Standards. In this provision the parties have committed
to "encourage each employee to maintain
a high degree of personal
fitness, proficiency, knowledge and skill in
procedures in work."
The parties have agreed to continue the
first paragraph of the
article except to change the reference from
union to the Guild.
Two major areas are in dispute between the
parties in this issue.
The
first issue deals with compensation for time spent in
travel and attendance at training or
schools. The City proposed
that any time spent in excess of normal
working hours will be
compensated for in compliance with
FLSA. In essence this means
that if three officers drive to
outside of their normal work schedule, only
the driver of the
vehicle is compensated for the travel
time. The Guild proposed
that travel time be compensated at the
normal rate of pay or
overtime if applicable. The current practice is consistent with
the City's proposal.
The
second area of disagreement concerns a Guild proposal
to provide premium pay for the specialized
functions of Field
Training Officer, Supervisor, Defensive
Tactics Instructor and Fire
Arms Instructor. The City made no proposal for additional
compensation for the performance of these
functions.
B. The
Guild
The
Guild takes the position that officers who are
required to travel to and from training
without compensation are
losing a significant amount of their
personal time and not being
compensated because they are not driving the
vehicle. According to
the Guild,
it is appropriate that the City be required to
compensate employees for the loss of their
personal time. Since
the training is mandatory and the employee
is required to travel to
training sites, the employee should be
compensated for the travel
time.
Regarding the
proposal to compensate
officers for
training work functions,
the Guild argued that all of the
specialized
duty assignments have
significant additional
requirements and impact on the officer.
These duties are fulfilled
in addition to the normal work that each member
performs as a
police officer for the City.
Each
of the specialties require extensive education and
certification in order to serve in the
specialized functions in
dispute.
Further, the officers who fulfill these specialized
functions are required to perform extra work
such as maintenance of
paper work, development of curriculum, and
performing the work at
times other than the normal shift. The Guild views this proposal
as
extra pay for extra work."
The
final aspect of the Guild's proposal would allow
members to resign from the specialized
training functions. One
member testified at the hearing that he has
tried to quit the
Defensive Tactics Instructor assignment on
two different occasions
because of the disruption to his personal
life. In both cases the
officer was not allowed to resign and was
required to continue to
perform the assignment. The Guild believes that employees should
not be required to perform duties over and
above a police officer
without the member's consent.
C. The
City
The
City objects to the Guild's proposal as it would
markedly increase overtime pay in a manner
not required by law.
According to the City, its obligation to pay
officers while engaged
in training should be defined by the
FLSA. Officers should not be
paid overtime for merely riding in a car
outside of duty hours.
Turning
to the Guild's proposal regarding pay
for
specialized functions, the City submits the
officers accept and
perform this training for the extra overtime
pay they receive. It
would be inappropriate to compensate
officers with an additional
three percent for each additional assignment
of this type as it
would constitute pyramiding of pay. The three percent increase
would also increase the base for the
overtime hours paid. No
comparables were offered by the Guild
justifying such a pay
practice.
None of the five cities which the City selected offered
training
standards pay for
officers performing specialized
functions.
Moreover,
the Chief testified that training officers
schedules are adjusted to accommodate the
responsibilities which
are carried with the assignment. With a low turnover rate in the
Pullman Police Department, the incidents of
training recruits is
low.
Thus, the Arbitrator should reject the proposal of the Guild
and award the City's offer on this issue.
D. Discussion
and Findings
The
Arbitrator finds that there is an area of compromise
which will recognize the legitimate needs of
both sides on this
issue.
Due to the remote location of
place in the
time.
In some cases the travel time could amount to an additional
day to reach the training site and
return. Where the training is
required by the City, it is unreasonable for
the City to be free of
any obligation to the employee who must
travel significant
distances outside of the normal
workday. The City under the agreed
on language controls whether or not
employees shall attend training
and be compensated for it by the City.
The
Arbitrator will award language that provides for
compensation in compliance with the FLSA.
However, when the travel
time exceeds three hours, officers shall be
compensated at the
applicable overtime rate for the time spent
in travel in excess of
three hours.
The
Guild's proposal for premium pay for specialized
functions
should not be
implemented during this
round of
bargaining.
The subject of premium pay for specialized functions
should be deferred to future
negotiations. On the other hand, if
the City is not expected to compensate
employees for performing the
specialized functions, the Arbitrator is
persuaded that there
should be limits on the amount of time a
member should be required
to serve as a Field Training Officer, Fire
Arms Instructor and
Defensive Tactics Instructor. The City has a
legitimate concern in
preventing turnover in employees who perform
training for the
Department.
It costs money and time to get an officer certified to
provide the specialized training. The Arbitrator will award
language which limits the amount of time an
officer can be required
to perform a specialized function to three
years. Because this is
new language, the Arbitrator will set
January 1, 1991, as the point
from which the three year service
requirement shall be measured.
AWARD
The
Arbitrator awards a training standards provision to
read as follows:
It
shall be the joint responsibility of the
City
and the Guild to encourage each employee
to
maintain a high degree of personal fitness,
proficiency,
knowledge and skill in procedures
and
work. Training and seminars shall be
made
available
to the employees for this purpose.
Employees
electing to attend such training
while
off duty shall do so at no expense to
the
City, except travel and/or lodging shall
be
paid by the City if in the opinion of the
Chief
of Police satisfactory benefits will be
gained
by the City.
Travel,
breaks, etc., going to and from and
while
attending mandatory training or schools,
will
be compensated for consistent with normal
hours
worked. Any time spent in excess of the
normal
working hours will be compensated for
in
compliance with FLSA. In the event the
time
spent in excess of normal working hours
exceeds
three (3) hours, the amount of time
limit
over the three (3) hours
shall be
compensated
at the applicable overtime rate.
Special
arrangements will be made for swing
and
graveyard employees to attend schools.
Adjusted
travel days will be provided so as to
avoid
the loss of normal days off which fall
within
the scheduled training or travel to and
from.
Officers
assigned to specialized functions
(I.E., Field
Training Officers, Firearms
Instructors, Defensive Tactics Instructors)
shall
not be required to perform any of the
three
specialized functions for a period in
excess
of three (3) consecutive years. The
initial
period for calculating the time spent
in
these three specialized functions shall be
ISSUE 9: Education/Longevity
A. Background
Article
24 of the 1987-89 Agreement offers an educational
incentive pay for officers who have
completed a specified number of
education credits in four identified fields
of study. The
incentive pay ranges from 2% for one year of
study to 10% for a
masters degree. A bachelors degree is worth 8%. The majority of
the members in this unit receive some level
of education incentive
pay.
The
City would continue the existing language with a
modification to add "law and
accounting" and "other fields that are
mutually approved" to the list of
approved major fields of study
for which education incentive pay would be
allowed. The Guild has
a similar proposal on the expansion of the
list of approved major
fields of study.
The
major difference in this Article is a Guild proposal
which would combine the education incentive
pay with a longevity
matrix.
B. The
Guild
The
Guild notes at the outset that the
Department is a well educated Department in
which 15 of the 21
bargaining
unit employees have
a bachelors degree
or its
equivalent.
The Guild offered two main reasons for adding the
longevity benefit to the contract. First, the retirement systems
under which police officers earn retirement
benefits are referred
to as the LEOFF 1 retirement plan and the
LEOFF 2 retirement plan.
LEOFF 1 does not count education incentive
as part of its base pay
retirement determination. LEOFF 2 does count
education incentives.
However, LEOFF 1 does include longevity pay
in its base rate
determination. The Guild submits that adoption of its
matrix
system which combines education and
longevity would bring "parity
to the retirement systems."
The
second justification offered by the Guild for its
longevity proposal is based on recognition
of the value of the
veteran officer. According to the Guild, the skill and
experience
of veteran officers is essential for an
effective police agency.
Hence, the skill and experience of veteran
officers should be
recognized by adding the Guild's proposed
longevity program to the
current contract.
C. The
City
The
City takes the position that
members of this
bargaining unit enjoy a competitive and
advantageous educational
incentive program which yields additional
dollars to the members of
this Department. From the viewpoint of the City, the addition
of
longevity pay is not warranted by the
comparables.
In
sum, the City submits that the members of this unit
enjoy a superior educational incentive pay
that is more than
adequate to keep good officers employed by
the City. Longevity pay
is unneeded and is not a prevailing practice
among the City's
comparables.
Thus, the Arbitrator should reject the proposal of
the Guild.
D. Discussion
and Findings
The
Arbitrator finds the Guild failed to make its case
for the addition of longevity pay to the
current Collective
Bargaining Agreement. The competitive position of the present
educational incentive and monetary value to
the membership is
undisputed.
No evidence was offered by the Guild which would
justify the payment of additional
compensation for longevity with
the City.
Absent strong evidence of comparability, the Guild's
argument for parity under the LEOFF 1 and
LEOFF 2 retirement plans
is unpersuasive. Therefore, it will be the
award of the Arbitrator
the Guild's longevity proposal shall not
become a part of the
Collective Bargaining Agreement.
The
parties are close on what fields of study shall be
approved for education incentive pay. The City proposed law and
accounting
while the Guild
proposed business
administration/accounting as approved major
fields for incentive
pay.
No evidence was offered by the City on why a major in
accounting should be the exclusive field in
business administration
to qualify for incentive pay. The Arbitrator will award the
Guild's proposal on this subject.
AWARD
The
Arbitrator awards that existing contract language
should continue in the successor Agreement
with the addition of two
fields of study for which education
incentive could be paid. The
new contract should contain the following
language.
5. Business Administration/Accounting.
6. Other fields that are mutually
approved.
ISSUE 10: Drug and Alcohol
Policy
A. Background
The
1987-89 contract is silent on the subject of drug and
alcohol testing. Both parties to this dispute endorse the goal
to
create and provide a drug free
workplace. The crux of this dispute
centers over how that goal should be
accomplished in
party to this contract issue has advanced
their own proposed system
to deal with this controversial issue. The proposals offered by
each side are comprehensive and
complex. There are significant
philosophical differences between the
approaches proposed by the
parties. The Guild characterized its
proposal as rehabilitative in
nature and the City's as a punitive approach
to this subject.
For
the sake of brevity, the Arbitrator has not retyped
the
proposals offered by each
party. The Arbitrator
has
photocopied the proposals of the Guild and
included it in this
award as Attachment A. The City's proposal is included in this
award as Attachment B.
B. The
Guild
The
Guild's proposal on this issue is modeled after one
currently in existence for the
10.1). The Guild takes the position its proposal
should be awarded
because it takes a rehabilitative approach
to the problem of
substance abuse. Both parties agree as to the methodology of
testing.
However, the Guild wishes to prevent the drug testing
article from becoming a disciplinary article
itself. The City
would
still retain the
right to discipline
employees for
misconduct.
It is the Guild's position that the purpose of this
article should be to enable and assist in
the rehabilitation of the
officer for the benefit of both the employer
and the employee.
The
Guild objects to the City proposal which subjects
officers who handle narcotics or evidence to
"greater scrutiny"
than the reasonable suspicion standard
established in the Guild's
proposal.
The definition of greater scrutiny is unknown and
without legal precedent. The Guild is also concerned with the
City's proposal to allow for a second sample
in the event the first
sample is lost or destroyed. Since the City has control over the
sample, it is obligated to preserve the sample. If the City fails
to protect the sample properly, the Guild
sees no reason for the
City to be allowed to obtain a second
sample. The Guild is also
concerned about the City's proposal relating
to legal drug use.
Pursuant
to the City's
proposal testing would
take into
consideration legal drug use. According to the Guild, testing
should be designed so that legal drug use
does not effect the drug
test.
The officer should not be subjected to any adverse testing
results for consuming a substance prescribed
by his doctor.
The
Guild next argues the City's proposal for LSD testing
is flawed since no standards exist for LSD
testing. In addition,
if testing standards are changed during the
term of the Collective
Bargaining Agreement, the Guild should have
the right to bargain
over their inclusion in the contract. The City's proposal would
automatically include changes in standards
in the Collective
Bargaining Agreement. Therefore, the Arbitrator should award the
language proposed by the Guild.
C. The
City
The
City takes the position that the Police Department
needs to be in a leadership role with
respect to controlling
substance abuse. The public expects the Police Department to
provide this leadership and to set an
example. The City must
retain the right to discipline for substance
abuse which it
considers, in and of itself,
misconduct. The City reasons it
cannot tolerate the Guild proposal that an
employee must be given
the right to treatment instead of
discipline. Employees who are
disciplined for drug and alcohol related
offenses retain their
right to grieve under the contract
procedures.
The
City also objects to the Guild's proposal requiring
the City to pay for rehabilitation costs
over and above what might
be allowed by the insurance carrier. The City submits it should
not be subjected to the potential unlimited
expense for drug and
alcohol rehabilitation.
The
City concluded in its post-hearing brief as follows:
In
summary, the Guild's proposal puts the City
in the
position of not
being able to
effectively
execute a comprehensive substance
abuse
policy and by doing so undermines the
integrity
of the Pullman Police Department in
the
eyes of the public and hampers the City's
effort
to create and maintain the safest
possible
work environment for its employees.
D. Discussion
and Findings
At
the outset the reader must recognize both parties
concur that a substance abuse policy is
appropriate and necessary.
The dispute before this Arbitrator centers
over which of the
proposals should be implemented. The impetus
for the bargaining on
this subject was provided by the Drug Free
Workplace Act of 1988.
Both of the proposals offered by the parties
go far beyond the
minimum requirements of the law. The legislative initiatives are
designed to eliminate drug use and abuse in
our country.
The
Drug Free Workplace Act of 1988 requires the City to
take certain steps to incur a drug free
workplace. The Drug Free
Workplace Act provides a unique circumstance
for applying the
statutory criteria to a labor dispute. The only factor relevant to
this dispute is comparability. However, neither of the parties
introduced any evidence of comparability
from their list of
jurisdictions which the parties sought to
compare themselves with
for the purpose of establishing a drug and
alcohol policy. The
failure to offer evidence on comparability
results partially from
the fact that many jurisdictions have not
established in their
collective bargaining agreements substance
abuse policies.
The
state of the record in this case is that there is no
historic
or current drug
abuse problem within
the Police
Department.
The one example referred to at the hearing was an
employee with an alcohol problem, a legal
substance, in which the
parties implemented a rehabilitation
philosophy for this employee.
The approach of the parties worked to
successfully address the
employee's situation. The parties dealt with the situation
involving alcohol abuse without any contract
language on the
subject.
When
a party proposes a change or addition to a contract,
interest arbitrators traditionally require
the party offering the
proposal to provide evidence of a
demonstrable need for the new
language.
Absent from this case is a scintilla of evidence there
exists among the members of this bargaining
unit an abuse problem
justifying the intrusive procedure
contemplated by either proposal.
The motivating factor for including this
language in the contract
is federal law. In the judgment of this Arbitrator, the parties
should proceed slowly when developing
contract procedures for
dealing
with substance abuse.
A careful review
of the
comprehensive language offered by both
parties revels that the
Guild's approach provides the least
intrusive method to meet the
requirements of federal law and address this
important issue.
Adoption
of the Guild's proposal will establish a
leadership role with respect to controlling
substance abuse and
humane treatment of the members of this
Department. At this stage
of development of a substance abuse program,
the Arbitrator concurs
with the Guild that a rehabilitative
approach is the preferred path
to follow when first entering into this
complex and controversial
area of the law. The City has a legitimate objective in creating
a policy for a drug free workplace. When the
City is pursuing this
legitimate objective, it is important to
balance the employer's
interest against the level of intrusion into
an employee's personal
privacy.
The absence of a demonstrable problem within this Police
Department compels the Arbitrator to award
the Guild's proposal
which is carefully limited and reasonably
designed to meet the
legitimate needs of the City. If in the future, problems with drug
and alcohol abuse warrant expansion of the policy,
changes can be
negotiated in this language in future
contracts. Nothing in this
record suggests the City of Pullman needs to
be a leader in drug
and alcohol testing policies in the state of
Washington.
The
Arbitrator concurs with the City that in one respect
the Guild's proposal should be
modified. Specifically, in Section
10 of the Guild's proposal the City is
required to pay any costs
over and above the insurance coverage for
the initial treatment and
rehabilitation of an employee. The City should not be required to
write a blank check for treatment programs
beyond that provided for
in the insurance policy. The subject of treatment and the cost of
paying for such treatment should be deferred
until future contract
negotiations.
Accordingly, the Arbitrator will award the Guild's
proposal with the deletion from Section 10
of the proposal
requiring the City to pay for the initial
treatment program over
and above what might be covered by
insurance.
AWARD
The
Arbitrator awards that the Guild's proposal shall
become a part of the successor contract with
one exception.
Specifically, the Arbitrator deletes from
Section 10 of the Guild's
proposal the sentence which reads:
Any
cost over and above the insurance coverage
shall
be paid for by the City for the initial
treatment
and rehabilitation.
ISSUE 11: prevailing Rights
A. Background
The
status quo is represented by Article 15 which reads:
ARTICLE
XV - PREVAILING RIGHTS
15.01
The
and
operation of the Department are that of
the
employer unless otherwise provided by the
terms
of this Agreement.
15.02 The Employer agrees that any and all
working
conditions, wages, hours and monetary
benefits
not covered by this Agreement shall
be
maintained at no less than the highest
standards
in effect previous to the time of
signing
of this Agreement.
15.03 No conditions, rights or privileges
of either
party are affected
unless
specifically
mentioned in this Agreement.
The Guild proposed to continue present
contract language. On the
other hand, the City offered language which
would substantially
change the existing provisions. The City's
proposed language would
include a "laundry list of enumerated
management rights."
B. The
City
The
City takes the position that the laundry list
management rights provision has been in
effect between the City and
its other bargaining units and with the
City's comparables. (City
Ex. 65 & 67). In addition, the Guild has agreed to a
laundry list
type of management rights article with its
Support Services unit.
The Guild should also accept the long form
provision with uniformed
officers.
The City submits that two different provisions on this
subject would be confusing and clumsy when
the Chief seeks to
administer the two separate contracts. Therefore, the Arbitrator
should award what the Guild accepted for the
Support Services
staff.
C. The
Guild
The
Guild takes the position that the City's proposal
should be rejected. According to the unrebutted testimony from Ron
Miller, the current Guild president and shop
steward for the
Teamsters, there has been no problem with
the prevailing rights
article which has existed for 21 years. Since the City has not
presented the arbitration panel with any
reason to change the
article, the current contract language
should be preserved.
D. Discussion
and Findings
Present
contract language provides a direct statement
that "the management and operation of
the Department are that of
the Employer unless otherwise provided by
the terms of this
Agreement." The Arbitrator was not persuaded the present
language
is a meaningless statement of the retained
rights of the City. It
is precise and to the point that unless
bargained away in this
Agreement, the City retains its prerogatives
to operate the Police
Department as it sees fit.
The
City has proposed a significant change in the
management rights article by moving from a
basic statement of
management
prerogatives to a
"laundry list" of
exclusive
prerogatives plus an incorporation of
statutory rights into the
contract. While there is some value in
including a laundry list of
enumerated management rights in a collective
bargaining agreement
for purposes of clarification, the
Arbitrator remains unconvinced
that the City has offered sufficient evidence to make the
substantial changes to the management rights
article it seeks by
this proposal. First, the existing language has been a
fixture in
the Collective Bargaining Agreement for 21
years. Second, the City
was unable to point to a single situation in
which the management
rights clause has unduly restricted the
ability of management to
make decisions regarding police operations.
Third,
there is no evidence the Guild or its predecessor
has filed unfounded grievances because of
the absence of a
comprehensive and detailed management rights
type of provision. In
fact, there is no evidence that any
grievances have been filed that
were based upon the management rights
article. Fourth, the
Arbitrator remains unconvinced that the
police chief would suffer
significant problems because he would be
forced to administer
different provisions in this subject area
for the two bargaining
units.
Fifth,
while the evidence on comparability would argue in
favor of
a more extensive management
rights provision, the
Arbitrator was not persuaded that problems
with the existing
language warranted taking the mammoth step
from a basic statement
of management rights to an all encompassing
and extremely detailed
management rights provision as proposed by
the City.
In
sum, the City has failed to demonstrate any problems
with existing contract language. Absent a showing the existing
language is unworkable or unfair to the
City, the Arbitrator is
unwilling to award the substantial and
significant changes sought
in this article by the City.
AWARD
The
Arbitrator awards that the existing language should
remain in the successor Agreement without
modification.
ISSUE 12: Pay Days
A. Background
Employees
are currently paid on the last working day of
the month.
The City proposed to change the payday from the last
working day of the month to the fifth
working day but no later than
the seventh calendar day. The Guild proposed
to retain the current
system that payday is the last working day of
the month.
B. The
City
The
language proposed by the City for Article 30 reads as
follows:
Contingent
upon the approval of all bargaining
units
within the City, payroll warrants shall
be
distributed on the fifth working day of the
month
next following the month for which
salaries
and wages are earned, as long as this
date
is no later than the 7th calendar day of
the
month. Said payroll
warrants shall
contain all
pay elements claimed
by the
employee
and approved by the department head
through
the last day of the prior month. A
permanent
employee may also request a salary
draw
to be disbursed on the twentieth day of
each
month, or the
last regular workday
preceding
the twentieth. The amount of said
draw shall
not exceed one-half
of the
employee's
regular monthly take-home salary,
excluding
such elements as overtime, holiday
pay, and other non-recurring entitlements.
The request
for said draw
must be for
continuous
months, be submitted prior to the
15th
day of the effective month, and the draw
amount
may be changed only in the months of
February
and July. The draw amount shall be
deducted
from the employee's monthly payroll
warrant.
The
City argued that all other City bargaining units have
agreed to this change in the day on which
employees are paid. The
City has also implemented this change with
respect to all non-
represented employees. The Guild has accepted this revised payday
schedule in the new police Support Services
Agreement. However,
the City cannot implement this change unless
it is done on a City
wide basis. To adopt a payday schedule which
is inconsistent among
other employee groups would be
administratively expensive and
clumsy.
City
witness Jack Tonkovich testified that the existing
practice does not conform to state law, requirements of the
retirement
system, state department of labor and industries
regulations, as well as those of the social
security system.
According to the City, the pay proposal
would benefit Guild
employees who earn overtime in the last week
of the month and are
currently not paid until the end of the
following month. Tonkovich
also testified without contravention that
the mid-month draw would
be of assistance to the employees.
The
City's proposal should be awarded in order to bring
Pullman into conformance with the federal
and state laws and
regulations concerning employee pay.
C. The
Guild
The
Guild maintains that the payday should continue to be
the last working day of the month. While the City presented
evidence as to the difficulty in calculating
overtime and other
accounting problems, the City did not
explore any alternatives
which might also solve the problems with the
payday set as the last
day of the month. According to the Guild, the accounting
problems
presented by the City can be resolved
without changing the payday.
The Guild is willing to work with the City
in seeking viable
alternative methods of delivering the pay to
employees. The Guild
pointed to the testimony of officer Chris Tenant
who stated that it
would be a hardship on him to have the
change in his payday.
Officer Tenant testified that he has his
house payment scheduled
for the first working day of the month. By changing the payday his
scheduled house payment would not coincide
with the date he
receives his salary check. Thus, the Arbitrator should award the
existing contract language.
D. Discussion
and Findings
The
Arbitrator finds the City's proposal is warranted.
This is another one of those issues where
internal parity controls
as it deals with a payroll system that is
common to all employees
of the City.
All other bargaining units have accepted the City's
proposed language. The City intends to implement the same type
of
system for non-represented employees.
The
City's evidence and testimony of Jack Tonkovich
established that there are some real legal
problems with the
current payroll system. (City Ex. 68 & 69). Adoption of this
proposal will help to alleviate those
accounting problems without
causing substantial inconvenience to the
members of this bargaining
unit.
While it is true some adjustments may have to be made by
employees because they will not receive
their checks on the last
working day of the month, the Arbitrator was
not persuaded that
objections from this bargaining unit should
holdup the entire
modernization of the payroll system.
The
Arbitrator concludes the City's proposed language for
Article 30 should be adopted.
AWARD
The
Arbitrator awards the City's proposal which states as
follows:
Contingent
upon the approval of all bargaining
units
within the City, payroll warrants shall
be
distributed on the fifth working day of the
month
next following the month for which
salaries
and wages are earned, as long as this
date
is no later than the 7th calendar day of
the month.
Said payroll warrants
shall
contain all
pay elements claimed by
the
employee
and approved by the department head
through
the last day of the prior month. A
permanent
employee may also request a salary
draw
to be disbursed on the twentieth day of
each
month, or the
last regular workday
preceding
the twentieth. The amount of said
draw shall
not exceed one-half
of the
employee's
regular monthly take-home salary,
excluding
such elements as overtime, holiday
pay, and other non-recurring entitlements.
The request
for said draw
must be for
continuous
months, be submitted prior to the
15th
day of the effective month, and the draw
amount
may be changed only in the months of
February
and July. The draw amount shall be
deducted
from the employee's monthly payroll
warrant.
Respectfully submitted,
Gary L. Axon
Arbitrator
Dated:
ATTACHMENT
A
PULLMAN POLICE OFFICERS'
GUILD
PROPOSAL
DRUG AND ALCOHOL TBSTING
POLICY
The procedure outlined in this document for
drug and alcohol
testing shall become part of the current
collective
bargaining Agreement between the City of
and the
covered by all applicable articles within
that Agreement.
SECTION O1 POLICY:
In recoqnition and
compliance with the Federal
Drug-Free Workplace Act, and other
applicable Federal
Statutes, the City and the Guild are
committed to a
drug-free workplace and have an obligation
to insure
public safety and trust with regard to their
services
and programs. Accordingly, the manufacture,
distribution, dispensation, unlawful
possession, or use
of a controlled substance or drug not
medically
authorized, which would impair job
performance or pose
a hazard to the safety and welfare of the
employee, the
public, or other employees, or the use of
alcohol in
the work place is strictly prohibited.
It is the goal of this policy to prevent,
eliminate or
absolve illeqal
drug usage through education and
rehabilitation of the affected personnel.
SECTION 02
INFORMING EMPLOYEES ABOUT DRUG AND ALCOHOL
TESTING:
All employees shall be fully informed of the
City's
druq and alcohol testing
policy. Employees will be
provided with information concerning the
impact of the
use of alcohol and drugs on job
performance. In
addition, the City shall inform the
employees on how
tests are conducted, what the test can
determine and
the consequences of testing positive for
drug use. All
newly hired employees will be provided with
this
information on their initial date of
hire. No employee
shall be tested before this information is
provided to
him/her.
SECTION 02
INFORMING EMPLOYEES ABOUT DRUG AND ALCOHOL
TESTING: (continued)
Employees who voluntarily come forward and
ask for
assistance to deal with a drug and/or
alcohol problem
shall not be disciplined by the City. No disciplinary
action will be taken against an employee
unless he/she
refuses the opportunity for rehabilitation,
fails to
complete the program successfully, or again
test
positive for drugs within two (2) years of
completing
an appropriate rehabilitation program.
SECTION 03
EMPLOYEE TESTING:
Employees shall not be subjected to random
medical
testing involving blood or urine analysis or
other
similar or related tests for the purpose of
discovering
possible drug or alcohol abuse. If however,
objective
evidence exists establishing reasonable
suspicion to
believe an employee's work performance is
impaired due
to drug or alcohol abuse, the City will
require the
employee to undergo medical test consistent
with the
conditions as set forth in this Policy.
SECTION 04
SAMPLE COLLECTION:
The collection and testing of the samples
shall be
performed only by a laboratory and by a
physician or
health care professional gualified
and authorized to
administer and determine the meaning of any
test
results.
The laboratory performing the test shall be
one that is certified by the National
Institute of Drug
Abuse (NIDA) . The laboratory chosen must be agreed to
between the Guild and The City. The laboratory used
shall also be one whose procedures are
periodically
tested by NIDA where they analyze unknown
samples sent
to an independent party. The results of the employee
tests shall be made available to the Medical
Review
Physician.
Collection of blood or urine samples shall
be conducted
in a manner which provides the highest
degree of
security for the sample and freedom from
adulteration.
Recognized strict chain of custody procedures
must be
followed for all samples as set by
NIDA. The Guild and
the City agree that security of the
biological urine
and blood samples is an absolute necessity,
therefore,
the City agrees that if the security of the
sample is
compromised in any way, any positive result
shall be
invalid and may not be used for any purpose.
SECTION 04
SAMPLE COLLECTION:
(continued)
Blood and urine samples will be submitted as
per NIDA
Standards.
Employees have the right for Guild and/or
legal council representation to be present
during the
submission of the sample. Employees shall not be
witnessed while submitting urine
specimen. Prior to
submitting a blood or urine sample, the
employee will
be required to sign a consent and release
form as
attached to this Policy (Attachment 1).
A split sample shall be reserved in all
cases for an
independent analysis in the event of a
positive test
result.
All samples must be stored in a scientifically
acceptable preserved manner as established
by NIDA.
All positive confirmed samples and related
paperwork
must be retained by the laboratory for at
least six (6)
months or for the duration of any grievance,
disciplinary action or legal proceedings,
whichever is
longer. At the conclusion of this period,
the paperwork
and specimen shall be destroyed. Tests shall be
conducted in such a manner that an
employee's legal
drug use and diet does not affect the test
results.
SECTION 05
DRUG TESTING:
The laboratory shall test for only the
substances and
within the limits as follows for the initial
and
confirmation tests as provided within NIDA
Standards.
The initial test shall use an immunoassay
which meets
the requirements of the Food and Drug
Administration
for commercial distribution. The following initial
cutoff levels shall be used when screenings
specimens
to determine whether they are negative for
these five
drugs or classes of drugs:
INITIAL
TESTING
Marijuana
metabolites 100 ng/ml
Cocaine
metabolites 300 ng/ml
Opiate
metabolites 300 ng/ml
Phencyclidine 25 ng/ml
Amphetamines 1,000 ng/ml
(1) If
immunoassay is specific for free morphine, the
initial test level is 25 ng/ml.
SECTION O5
DRUG TESTING: (continued)
If initial testing results are negative,
testing shall
be discontinued, all samples destroyed and
records of
the testing expunged from the employee's
file(s). Only
specimens identified as positive on the
initial test
shall be confirmed using gas
chromatograph/mass
spectrometry (GC/MS) techniques at the
following listed
cutoff values:
CONFIRMATARY
TESTING
Marijuana
metabolites (l) 15 ng/ml
Cocaine
metabolites (2) 150 ng/ml
Opiates
a. Morphine 300 ng/ml
b. Codein 300 ng/ml
Phencyclidine 25
ng/ml
Amphetamines
a. Amphetamine 500 ng/ml
b. Methamphetamine 500 ng/ml
(1) Delta-9-tetrahydrocannabinol-9-carboxylic
acid
(2) Benzoylecgonine
If confirmatory testing results are
negative, all
samples shall be destroyed and records of
the testing
expunged from the employee's file(s).
SECTION O6
ALCOHOL TESTING:
A breathalyzer or similar equipment shall be
used to
screen alcohol use if positive, shall be
confirmed by a
blood alcohol test performed by a qualified
laboratory.
This screening test shall be performed by
an individual qualified through the
State Patrol. An initial testing positive alcohol
shall meet the standards as set forth in the
Revised
Code Of Washington (RCW) 46.61.502. If initial testing
are negative, testing shall be discontinued,
all
samples destroyed and records of the testing
expunged
from the employee's file(s). Only specimens identified
as positive on the initial test shall be
confirmed
using a blood alcohol level.
SECTION 06
ALCOHOL TESTING: (continued)
Sampling handling procedures, as described
in SECTION
04, shall apply. A positive blood alcohol level shall
meet the standards as set forth in the
Revised Code Of
Washington (RCW) 46.61.502. If confirmatory testing
results are negative, all samples shall be
expunged
from the employee's file(s).
SECTION 07
MEDICAL REVIEW PHYSICIAN:
The Medical Review Physician shall be chosen
and agreed
upon between the Guild and the City and must
be a
licensed physician with a knowledge of
substance abuse
disorders.
The Medical Review Physician shall be
familiar with the characteristics of the
test
(sensitivity, specificity, and predictive
value), the
laboratories running the tests and the
medical
conditions and work exposures of the
employees.
The role of the Medical Review Physician
will be to
review and interpret the positive test
results. He
must examine alternate medical explanations
for any
positive test results. This action shall include
conducting a medical interview with the
affected
employee, review of the employee's medical
history and
review of any other relevant biomedical
factors. The
Medical Review Physician must review all
medical
records made available by the tested
employee when a
positive test could have resulted from
legally
prescribed medication.
SECTION 08
LABORATORY RESULTS:
The laboratory will advise only the employee
and the
Medical Review Physician of any positive
results The
results of a positive drug or alcohol test
can only be
released to the City by the Medical Reviews
Physician
once he/she has completed his/her review and
analysis
of the laboratory's test. The City will be required to
keep the results confidential and it shall
not be
released to the general public.
SECTION 09
TESTING PROGRAM COSTS:
The City shall pay for all costs involving
drug and
alcohol testing as well as the expenses
involved for
the Medical Review Physician. The City shall also
reimburse each employee for their time and
expenses
incurred including travel involving the
testing
procedure only.
SECTION 10
REHABILITATION COSTS:
Any employee who tests positive for illegal
drugs or
alcohol shall be medically evaluated,
counseled and
treated for rehabilitation as recommended by
an E.A.P.
counselor.
Employees who complete a rehabilitation
program may be re-tested randomly once every
quarter
for the following twenty-four (24) month
period. An
employee may voluntarily enter
rehabilitation without a
requirement of prior testing. Employees who enter the
program on their own initiative shall not be
subject to
re-testing.
The treatment and rehabilitation shall be
paid for by the employee's medical insurance
program.
Any costs over and above the insurance
coverage shall
be paid for by the City for the initial
treatment and
rehabilitation. Employees who volunteer to enter the
program will be granted necessary time off
duty to
complete the treatment and rehabilitation
program
without loss of pay or benefits. Employees who test
positive shall be allowed to use any and all
accrued
and earned leave for the necessary time off
involved in
the rehabilitation.
If an employee re-tests positive during the
twenty-four
(24) month period, the employee will be
re-evaluated by
an E.A.P. counselor to determine if the
employee
requires additional counseling and/or
treatment. The
employee will be solely responsible for any
costs not
covered by insurance, which arise from this
additional
counseling or treatment.
SECTION 11
DUTY ASSIGNMENT AFTER TREATMENT:
Once an employee successfully completes
rehabilitation,
he/she shall be returned to his/her regular
duty
assignment.
Once treatment and any follow-up care is
completed, and three (3) years have passed
since the
employee entered the program, the employee's
personnel
file(s) shall be purged of any such
reference to
his/her drug or alcohol problem.
SECTION 12
RIGHT OF APPEAL:
The employee has the right to challenge the
results of
the drug or alcohol tests and any discipline
imposed in
the same manner he/she may grieve any other
City
action.
SECTION 13
GUILD HELD HARMLESS:
This drug and alcohol testing program was
initiated at
the request of the City. The City assumes the sole
responsibility for the administration of
this Policy
and shall be solely liable for any legal
obligations
and costs arising out of the provisions
and/or
application of the collective bargaining agreement
relating to drug and alcohol testing. The Guild shall
be held harmless for the violation of any
worker rights
arising from the administration of the drug
and alcohol
testing program.
SECTION 14
CHANGES IN TESTING PROCEDURES:
The parties recognize that during the life
of this
Agreement, there may be improvements in the
technology
of testing procedures which provide more
accurate
testing.
In that event the parties will bargain in
good faith whether to amend this procedure
to include
such improvements. If the parties are unable to agree
on the amendments they will be submitted to
impasse
procedures as outlined in RCW 41.56.
SECTION 15
CONFLICT WITH OTHER LAWS:
This Article in no way intends to supersede
or waive
any constitutional or other rights that an
employee may
be entitled to under Federal, State or Local
statutes.
ATTACHMENT
B
CITY OF
ISSUE: DRUG
AND ALCOHOL TESTING POLICY AND PROCEDURES
ARTICLE
18
The
procedures outlined in this document for drug and alcohol
testing shall become part of the current
bargaining agreement
between the City of
Officers Guild (the Guild), and be subject
to all of it's terms and
conditions.
SECTION
01 Policy: In recognition and coMpliance
with the
Federal Drug Free Workplace Act, and other
applicable federal
statutes, the City and the Guild are
committed to a drug-free
workplace and have an obligation to insure
public safety and trust
with regard to its services and
programs. Accordingly, the
manufacture,
dispensation, possession or use
of a controlled
substance, drug not medically authorized, or
other substance which
would impair job performance or pose a
hazard to the safety and
welfare of the employee, the public, or
other employees, or the
possession or use of alcohol in the
workplace is strictly prohibit-
ed.
The
City and the Guild believe it is imperative that employees
who abuse substances as defined, be aware of
the seriousness of
such misconduct and the.potential
penalties. All such employees
are encouraged to receive help and treatment
as necessary.
To
comply with federal law, the City requires that an employee
notify their supervisor of any criminal drug
statute conviction for
any violation occurring in the workplace no
later than five (5)
days after the conviction. If the employee is engaged in the
performance of a federally sponsored grant
or contract, the City
must notify the agency within ten days of
having received notice
that the employee has been convicted of a drug
statute violation
occurring in the workplace. The City will
take disciplinary action
against or require the satisfactory
participation in a state-
certified alcohol or drug abuse assistance
or rehabilitation
program by any employee who is so convicted.
Disciplinary action
may include dismissal or other appropriate
personnel action(s).
SECTION
02 Informing Employees About Drug and Alcohol testing:
All employees shall be fully informed of the
City's drug and
alcohol testing policy. Employees will be provided with informa-
tion concerning the impact of the
use of alcohol and drugs on job
performance. In addition, the city shall inform the
employees on
how tests are conducted, what the test can
determine, and the
consequence of testing positive for drug
use. All newly hired
employees will be provided with this
information on their initial
date of hire. No employee shall be tested
before this information
is provided to him/her.
SECTION
03 Employee Testing: Employees shall not be subjected
to random medical testing involving blood or
urine analysis or
other similar or related tests for the
purpose of discovering
possible drug or alcohol abuse. If, however, objective evidence
exists establishing reasonable suspicion to
believe an employee's
work performance is impaired due to drug or
alcohol abuse or the
employee reports to work under the influence
of drugs or alcohol or
is working under the influence of drugs or
alcohol, the City will
require the employee to undergo a medical
test consistent with the
conditions set forth in this policy. In the event that an off-duty
officer is required to report for duty and
believes that he/she may
be impaired due to the consumption of
alcohol or prescribed
medication, the officer shall inform the
duty supervisor. The
supervisor may excuse the officer from duty
with no threat of
disciplinary action or other sanction; or
the officer and the
supervisor may agree that the officer shall
be assigned to a duty
which would not require public contact.
Due
to the sensitive nature of the duties performed by
individuals involved in evidence handling
and narcotics investiga-
tions, they will be subject to
greater scrutiny with regards to
applying the reasonable suspicion standard.
SECTION
O4 Sample Collection: The collection
and testing of
samples shall be performed only by a
laboratory and by a physician
or health care professional qualified and
authorized to administer
and determine the meaning of any test
results. The laboratory
performing the test shall be one that is certified
by the National
agreed to between the Guild and the City.
The laboratory used shall
also be one whose procedures are
periodically tested by NIDA
wherein they analyze unknown samples sent to
an independent party.
The results of employee tests shall be made
available to the
Medical Review Physician.
Collection
of blood or urine samples shall be conducted in a
manner which provides the highest degree of
security for the sample
and freedom from adulteration. Recognized strict chain of custody
procedures must be followed for all samples
as set by NIDA. The
Guild and the City agree that security of
the biological urine and
blood samples is an absolute necessity,
therefore, the City agrees
that if the security of the sample is
compromised in any way, any
positive test result shall be invalid and
may nbt be used for any
purpose.
In this event, another sample may be taken.
Blood
or urine samples will be submitted as per NIDA stan-
dards. Employees have the right for Guild and/or
legal counsel
representatives to be present during the
submission of the sample.
Employees shall not be witnessed while
submitting a urine specimen
Prior to submitting a blood or urine sample,
the employee will be
required to sign a consent and release form
as attached to this
policy (Attachment 1).
A
split sample shall be reserved in all cases for an indepen-
dent analysis in the event of a positive
test result. All samples
must be stored in a scientifically acceptable
preserved manner as
established by NIDA All positive confirmed samples and related
paperwork must be retained by the laboratory
for at least six (6)
months or for the duration of any grievance,
disciplinary action or
legal proceedings, whichever is longer. At the conclusion of this
period, the paperwork and specimen shall be
destroyed. Consider-
ation shall be given to the
employee's legal drug use and diet in
the interpretation of test results.
SECTION
05 Drug Testing: The laboratory
shall test for only
the substances and within the limits as
follows for the initial and
confirmation tests as provided within NIDA
standards. The initial
test shall use an immnunoassay
which meets the requirements of the
Food and Drug Administration for commercial
distribution. The
following initial cutoff levels shall be
used when screening
specimens to determine whether they are
negative for these five
druqs or classes of drugs.
INITIAL
TESTING
Marijuana metabolites 100 ng/ml
Cocaine metabolites 300 ng/ml
Opiate metabolites (1) 300 ng/ml
Phencyclidine 25 ng/ml
Amphetamines 1,000
ng/ml
L.S.D. any
detectable level
(1)
If immunoassay is specific for free morphine, the initial
test level is 25 ng/ml.
If
initial testing results are negative, testing shall be
discontinued, all samples destroyed and
records of the testing
expunged from the employee's file(s) . Only
specimens identified as
positive on the initial test shall be
confirmed using gas chromato-
graph/mass spectrometry (GC/MS) techniques
at the following listed
cutoff values:
CONFIRMATORY
TESTING
Marijuana metabolites (1) 15 ng/ml
Cocaine metabolites (2)
150 ng/ml
Opiates
Morphine 300 ng/ml
Codeine 300
ng/ml
Phencyclidine 25 ng/ml
Amphetamines
Amphetamine 500 ng/ml
Methamphetamine 500 ng/ml
L.S.D. any detectable level
(1) Delta-9-tetrahydrocannabinol-9-carboxylic
acid
(2) Benzoylecgonine
If
confirmatory testing results are negative, all samples
shall be destroyed and records of the
testing expunged from the
employee's file(s).
Encompassing Language:
The
substances and standards in this provision are subject to
NIDA regulations and shall be updated as
needed to comply with NIDA
provisions.
SECTION
O6 Alcohol Testing: A breathalyzer
or similar
equipment shall be used to screen for
alcohol use and if positive,
shall be confirmed by a blood alcohol test
performed by a qualified
laboratory. This screening test shall be
performed by an individu-
al qualified through the
equipment certified by the State Police and
the standards set forth
by
testing shall be discontinued, all samples
destroyed and records of
the testing expunged from the employee's
file(s). Only specimens
identified as positive on the initial test
shall be confirmed using
a blood alcohol level. Sampling handling procedures, as described
in section 04, shall apply. A positive blood alcohol level shall
be that set forth by Washington state
law. If confirmatory testing
results are negative, all samples shall be
destroyed and records of
testing shall be expunged from the
employee's file(s).
SECTION 07 Medical Review Physician: The Medical Review
Physician shall be chosen and agreed upon
between the City and the
Guild and must be a licensed physician with
a knowledge of
substance abuse disorders. The Medical Review Physician shall be
familiar with the characteristics of the
test (sensitivity,
specificity, and predictive value) , the
laboratories running the
tests and the medical conditions and work
exposures of the
employees.
The
role of the Medical Review Physician will be to review and
interpret the positive test results. He/She
must examine alternate
medical explanations for any positive test
results. This action
shall include conducting a medical interview
with the affected
employee, review of the employee's medical
history and review of
any other relevant biomedical factors.
The Medical Review
Physician must review all medical records
made available by the
tested employee when a positive test could
have resulted from
legally prescribed medication.
SECTION
08 Laboratory Results: The
laboratory will advise
only the employee and the Medical Review
Physician of any positive
results.
The results of a positive drug or alcohol test can only
be released to the City by the Medical
Review Physician once he/she
has completed his/her review and analysis of
the laboratory's test.
The City will be required to keep the
resu1ts confidential and it shall not be released to the general public.
SECTION
O9 Testing Program Costs: The City
shall pay for all
costs involving drug and alcohol testing as
Well as the expenses
involved for the Medical Review
Physician. The City shall also
reimburse each employee for their time and
expenses incurred,
including travel, involving the testing
Procedure only.
SECTION
10 Rehabilitation Costs: Any
employee who tests
positive for illegal drugs or alcohol shall
be medically evaluated,
counseled, and treated for rehabilitation as
recommended by an
E.A.P.
counselor. The city shall
participate in the costs of such
rehabilitation to the extent provided under
the city-paid medical
insurance coverage.
SECTION
11 Duty Assignment After Treatment:
Once an employee
successfully completes rehabilitation,
he/she shall be returned to
his/her regular duty assignment. Once treatment and any follow-up
care is completed, and three (3) years have
passed since the
employee entered the program, the employee's
file(s) shall be
purged of any such reference to his/her drug
or alcohol problem.
SECTION
12 Right of Appeal: The employee has
the right to
challenge the results of the drug or alcohol
tests. Any discipline
imposed may be appealed through the
grievance procedure.
SECTION13
Guild Held Harmless: This drug and alcohol testing
program was initiated at the request of the
city. The City assumes
the sole responsibility for the
administration of this policy and
shall be solely liable for any legal
obligations and costs arising
out of the provisions and/or application of
this collective
bargaining agreement relating to drug and
alcohol testing. The
Guild shall be held harmless for the
violation of any worker rights
arising from the administration of the drug
and alcohol testing
program.
SECTION
14 Changes in Testing Procedures:
The Parties
recognize that during the life of this
agreement, there may be
improvements in the technology of testing
procedures which provide
more accurate testing. In that event, the parties will bargain in
good faith whether to amend this procedure
to include such
ilnprovements. If the parties are unable to agree on the
amendments
they may be submitted to impasse procedures
as outlined in RCW
41.56.
SECTION
15 Conflict With Other Laws: This
article in no way
intends to supersede or waive any
constitutional rights that an
employee may be entitled to under Federal,
State or local statutes.