INTEREST ARBITRATIONS

Decision Information

Decision Content

Washington State Patrol

And

Washington State Patrol Troopers Association

Fact Finding

Arbitrator:      Gary L. Axon

Date Issued:   01/10/1992

 

 

Arbitrator:         Axon; Gary L.

Case #:              09244-F-91-00164

Employer:          Washington State Patrol

Union:                Washington State Patrol Troopers Association

Date Issued:      01/10/1992

 

 

IN THE MATTER OF FACTFINDING      )

                                                                        )          

BETWEEN                                                     )           FINDINGS OF FACT

WASHINGTON STATE PATROL  )

TROOPERS ASSOCIATION,                     )           AND RECOMMENDATIONS

                                                                        )           OF

                                    Association,                )

                                                                        )           GARY L. AXON

                        and                                          )

                                                                        )           FACTFINDER

WASHINGTON STATE PATROL, )

STATE OF WASHINGTON,                        )

                                                                        )

                                    Patrol.                         )

 

HEARING SITE:                                                      Westwater Inn

                                                                                    Olympia, Washington

 

HEARING DATE:                                                    December 12, 1991

 

POST-HEARING BRIEFS:                                      None

 

RECORD CLOSED:                                     December 12, 1991

 

REPRESENTING THE ASSOCIATION:               Will Aitchison

                                                                                    Aitchison, Hoag, Vick

                                                                                    & Tarantino

                                                                                    1313 NW 19th Street

                                                                                    Portland, OR 97209

 

REPRESENTING THE PATROL:                          Chip Holcomb

                                                                                    Senior Counsel

                                                                                    Assistant Attorney General

                                                                                    State of Washington

                                                                                    PO Box 40100

                                                                                    Olympia, WA 98504-0100

 

FACTFINDER:                                                         Gary L. Axon

                                                                                    1465 Pinecrest Terrace

                                                                                    Ashland, OR 97520

                                                                                    (503) 488-1573

 

                                                            BACKGROUND

 

            The Patrol is responsible for general law and traffic

enforcement  in  the  state  of  Washington.    The  primary  law

enforcement mission of the Patrol is traffic enforcement throughout

Washington State.  The Patrol is divided into three bureaus.  The

Field Operations Bureau is the largest bureau which is divided into

eight geographic divisions. Within each division are approximately

fifty detachments.   Troopers and sergeants are assigned to the

various detachments.  The other two bureaus are the Investigative

Services Bureau and a Support Services Bureau.

            In 1988, the Washington Legislature modified the PECBA to

grant collective bargaining rights to members of the Patrol.  The

Patrol was placed under the control of the Public Employment

Relations Commission (PERC) instead of the Department of Personnel

which regulates collective bargaining for other state employees.

Under the law the Association and Patrol are not allowed to bargain

over "wage and wage-related" issues.  If the parties are unable to

reach agreement, non-binding factfinding is authorized to assist in

the resolution of the dispute.

            The Association was certified by PERC as the exclusive

bargaining representative for troopers and sergeants employed by

the Patrol.  The Association represents approximately 900 people

employed by the Patrol.  Members are assigned to the detachments

throughout the state of Washington.

            After the passage of the law authorizing collective

bargaining for members of the Patrol,  the parties commenced

negotiations.  As the result of negotiations, the parties entered

into their first Collective Bargaining Agreement.   The initial

contract covered a three year period from 1989 through 1991.

            The parties entered into negotiations for a successor

agreement to the 1989-91 contract.   Bargaining and mediation

resulted in agreement on all but two issues.  Impasse was declared

and the case was advanced to factfinding.

            The  two  issues  submitted  to  the  Factfinder  for  a

recommendation are as follows:

 

            ISSUE                                                                                     PAGE

            1.         Discipline and Discharge                                           4

            2.         Residency                                                                   20

 

 

                                    ISSUE 1:         Discipline and Discharge

 

            Background

            Article 15, Section A mandates that disciplinary actions,

including discharge, "shall be for cause only." Written reprimands

and disciplinary transfers may be appealed through the grievance

procedure.     Discipline  other  than  written  reprimand  and

disciplinary transfer are excluded from the grievance procedure.

            Article 16, Section E states:

 

            E.         Suspension, Demotion, and Discharge.  The

            established  statutory  disciplinary  process

            Trial Board and/or Superior Court or Trial

            Board and/or Disciplinary Appeals Board shall

            be the sole remedies for an employee who is

            suspended, demoted or discharged.

 

            The  statutory  appeal process  is  set  forth  in RCW

43.43.070.  Pursuant to this procedure a Trial Board is appointed

consisting of two Washington patrol officers of the rank of captain

or above and one member of equal rank to the grievant.   The

procedure  at  hearing  is  outlined  at  RCW  43.43.070.    An

administrative law judge presides over the hearing but has no vote.

A transcript is made of the hearing.

            After the hearing, the Trial Board makes its findings for

submission to the Chief.  If the Trial Board concludes the charges

are not sustained, the findings are binding on the Chief.  In the

event the charges are sustained, the Chief may determine the proper

disciplinary action.

            RCW 43.43.100 provides for writ of review to the superior

court of Thurston County to have the reasonableness and lawfulness

of the Chief's order of discipline reviewed.   Against this

statutory procedure the parties agreed to establish a Disciplinary

Appeals Board as an alternative to the judicial review established

by statute.  The member must make an election of remedies between

appealing the case to the Disciplinary Appeals Board or the

Thurston County Superior Court.

            If the employee elects to appeal to the Disciplinary

Appeals Board, the contract procedures are set forth in Article 15,

Section C.  The Disciplinary Appeals Board is composed of three

members from the bargaining unit and three members from management.

Each time the Disciplinary Appeals Board meets to consider an

appeal, a chair is selected by the flip of a coin.   The sole

evidence before the Disciplinary Appeals Board is the record of the

Trial Board hearing.  No additional testimony may be taken.  The

Disciplinary Appeals Board hears argument of counsel based on the

previously established record.

            Section C describes the function of the Disciplinary

Appeals Board as follows:

                                                * * *

            The Appeal Board's only function is to review

            the Chief's order.  The Board will review the

            Chief's order considering (1)  its fairness

            given the circumstances as demonstrated by the

            record  before  the  Trial Board,  (2)  the

            Washington State Patrol's mission statement

            and function as a law enforcement agency, and

            (3) the Patrol's prior disciplinary actions

            for similar conduct.

 

The Disciplinary Appeals Board has the authority to "uphold,

reduce, increase or reverse the penalty."  If the Chief's decision

is reversed, the Patrol must reimburse the member for the cost of

the transcript of the Trial Board proceeding.

            During the term of the 1989-91 contract, the Disciplinary

Appeals Board was convened to hear the appeals of four members.  In

one case the member resigned prior to the hearing.  Eight charges

were at issue against the three troopers who had appealed to the

Disciplinary Appeals  Board.    The Disciplinary Appeals Board

sustained the Chief's decision on four of the charges and reduced

the penalty on the four other charges.  The most serious discipline

considered by the Disciplinary Appeals Board was a five-day

suspension.

            The Association proposed to delete the Disciplinary

Appeals Board from the contract and replace the current system with

binding arbitration before a neutral arbitrator.  The Patrol would

continue current contract language.

 

            A.        The Association

 

            The Association proposed to modify Article 15, Section A

by deleting the second sentence which prohibits grievances over

reassignment or transfer of employees from a specialty position.

The Association would delete the entire Section C which addresses

the subject of the Disciplinary Appeals Board.  Turning to Article

16, the Association would delete the current language found in

Section E and substitute new language to state:

 

            E.         Appeals.  An employee who believes that

            he/she has been disciplined without just cause

            shall have one of two routes of appeal:  (1)

            the established statutory disciplinary process

            Trial Board and/or Superior Court; or (2) the

            grievance procedure established herein.   An

            employee electing to appeal discipline shall

            be required to specify,  in writing, which

            appeal route is chosen,  and to waive all

            rights to the other appeal mechanism.

 

The Association asserted this is the single most important issue

before the Factfinder.  From the viewpoint of the Association, the

Trial Board system is "wholly unsatisfactory to the members of the

Association."  According to the Association, the Trial Board system

is widely regarded as "manipulable" and about the furthest thing

from a neutral disciplinary forum as could be imagined.  Nor does

the ability to appeal to the court offer a reasonable alternative

to the Trial Board system.  Because of the standard of review in

court, the Association has been unable to discover one case where

a trooper has successfully appealed discipline through the court

system.

            It. is the perception of Association members that the

disciplinary system is unfair.  According to the Association, it

was the members' dissatisfaction with the disciplinary system that

served as the primary motivating factor behind the Association's

certification as  the exclusive bargaining representative  for

troopers.   During the negotiations for the first contract, the

Association aggressively pushed for arbitration by a neutral

arbitrator. The Patrol resisted such neutral third party review of

disciplinary  decisions.    In  attempting  to  find  a  possible

compromise, the Association proposed a disciplinary appeals system

similar to that in Michigan.  The Patrol rejected the Michigan

system and countered that it would consider the Michigan system if

the Disciplinary Appeals Board were viewed as an appellate body

over all disciplinary cases.

            In  order  to  close  the  contract  the  Association

reluctantly accepted the Disciplinary Appeals Board as the method

for review of disciplinary action.

            The Association maintains that the Disciplinary Appeals

Board has proved unsatisfactory for several reasons.  First, the

Disciplinary Appeals Board considers only the record of the

proceeding before the Trial Board.  There is no de novo review of

the evidence presented to the Trial Board.  This means the Trial

Board has the authority to determine what facts can be reviewed by

the Disciplinary Appeals Board since the record is created before

the Trial Board rather than the Disciplinary Appeals Board.

            Second, in the first case which the Disciplinary Appeals

Board heard it made a minor modification in the discipline imposed

by the Chief. After that decision some members of the Disciplinary

Appeals Board received a letter from the Chief, described by the

Association, as "threatening in nature."  The letter asked the

members  of  the  Disciplinary Appeals Board  to  justify their

decisions and made it clear that the Chief was dissatisfied with

the results of the Disciplinary Appeals Board.

            Third, the system where the Disciplinary Appeals Board is

only entitled to review the record developed before the Trial Board

has proved to be extremely troublesome.   The Trial Board has

refused to consider evidence which would plainly be admissible in

arbitration.   By controlling the record which the Disciplinary

Appeals Board will receive, the Trial Board can effectively control

the decision the Disciplinary Appeals Board makes.

            In sum, the results before the Disciplinary Appeals Board

have been disappointing to the Association.

            The Association next points to the practices in the

comparable jurisdictions. Under RCW 41.56, the jurisdictions which

are considered to be comparable must be located on the "west

coast."  The three west coast states which the Association argued

are relevant are Washington, Oregon and California.  In Oregon, all

discipline  in the Oregon State  Police  is  appealable  to an

arbitrator. This system has been in place since the first contract

was negotiated in 1985 between the Oregon State Police Officers

Association and the State of Oregon.

            The California system is analogous to a civil service

board for the appeal of discipline.  Under the California system,

discipline is appealed to the state personnel board, where the

initial decision is rendered by an administrative law judge.  The

civil service board is an entity outside of the law enforcement

agency which makes the final decision on discipline.

            The Association also pointed to the practices in other

law enforcement agencies in the state of Washington.  (Assn. Ex.

C).  With the exception of the Patrol, disciplinary appeals in law

enforcement agencies are always heard by a party who is neutral and

independent of the law enforcement agency.   The Association's

survey of counties with population greater than 150,000 and cities

with population greater than 50,000 is uniform that discipline

appeals are ultimately resolved by a neutral arbitrator or civil

service board.

            Dan Davis, President of the Association testified on

behalf of the proposal.  Davis explained that the members want due

process in disciplinary matters.  According to Davis, the members

still view the current system as unfair and arbitrary because of

the control the Chief exercises over the existing process.  The

Association wants a system that is free from the Chief's overt and

implied control over the outcome of disciplinary appeals.  Davis

testified this  situation can be remedied by arbitration of

disciplinary matters by a neutral third party.

            The Association submits the current system does not work

because it is driven by a Trial Board that is dominated by

management representatives.  The evidence submitted at the Trial

Board is controlled by a management dominated group which slants

the results.   Therefore, the Association concludes that it is

critical to the integrity of the system to have arbitration by a

neutral who understands the law of discipline and discharge.

 

            B.        The Patrol

 

            The Patrol proposed to continue the current system of

addressing disciplinary issues.  In addition, the Patrol argues the

organization should follow the statutory system that has been in

place for several years.  Adoption of the Association proposal

would divest the Chief from his statutory authority to decide

disciplinary matters which are properly those of management.  From

the perspective of the Patrol, the Chief's role would be reduced to

recommending discipline, rather than making the decision as to

discipline.

            The  Patrol  next  argues  decisions  with  respect  to

discipline should not be delegated to a person unfamiliar with the

mission of the Washington State Patrol. A neutral arbitrator would

know nothing about the day-to-day operations of the Patrol.

According to the Patrol, it is necessary for the decision makers to

have a background in the Washington State Patrol in order to make

appropriate decisions on discipline.  Discipline is the method of

ensuring the work of the Patrol is accomplished which is properly

the prerogative of management.

            It is also the claim of the Patrol the current system is

working  satisfactorily.    Complaints  are  fully  and  fairly

investigated before charges are filed against a member.  The Trial

Board is chaired by an administrative law judge who is not assigned

to the Patrol.   Employees who contest disciplinary action are

represented by counsel before the Trial Board where they are given

full  opportunity  to  present  their  cases.    Appeals  to  the

Disciplinary Appeals Board reveal that discipline is changed.  (WSP

Ex. 1).  The Chief is bound by the decision of the Disciplinary

Appeals Board.  Thus, the Factfinder should recommend continuation

of a system that is functioning in a satisfactory manner.

            In conclusion, the Patrol submits the differences between

the parties on this issue are fundamental and philosophical.  The

Patrol does not want arbitration by a neutral third party because

it believes the final decision on discipline should rest with the

Chief of the Washington State Patrol.  The Chief is the person

charged with seeing that the mission of the Washington State Patrol

is accomplished and decisions on discipline should not be placed in

the hands of an outsider.

 

            C.        DISCUSSION AND FINDINGS

 

            The Factfinder finds the evidence and argument support a

recommendation the parties' Collective Bargaining Agreement include

binding arbitration before a neutral arbitrator for discipline and

discharge grievances. The reasoning of the Factfinder is set forth

in the discussion which follows.

            The parties have agreed in Article 16, Section F to a

grievance procedure.  The parties have also agreed in Article 15,

Section A that discipline "shall be for cause only."  The issue

which divides the parties is whether or not a disciplinary

grievance will end in arbitration before a neutral arbitrator or at

the Disciplinary Appeals Board and/or Chief's level.  The Patrol

believes the final decision on employee grievances should be made

by the Chief as the person charged by statute with running the

organization.  It is the Association's position that arbitration of

contract disputes is properly one to be placed before a neutral

arbitrator.    According  to  the  Association,  resort  to  the

Disciplinary Appeals Board or courts has proven to be a burdensome

and ineffective means to resolve contract grievances.

            In Article 16, Section A, the parties have specified the

purpose of the grievance procedure is "to establish effective

procedures for the fair, expeditious, and orderly resolution of

grievances at the lowest possible level."  (Emphasis added).  The

failure  of  the  parties  to  include  binding  arbitration  of

disciplinary grievances before a neutral third party works against

the contractually stated purposes of the grievance procedure.

Arbitration  before  a  neutral  arbitrator  would  be  entirely

consistent with the stated goal of Article 16, Section A calling

for the fair, expeditious, and orderly resolution of grievances.

With arbitration as the final step in the grievance procedure, the

effective use of the initial steps of the grievance procedure will

be promoted to resolve grievances at the lowest possible level.

The integrity of the grievance procedure will be enhanced in the

eyes of the membership because the decisions regarding discipline

will be reviewed by a neutral third party.

            The parties have defined a grievance in Article 16,

Section C to mean:

 

            C.        Definition.  A grievance is a dispute or

            difference of opinion raised by an employee,

            or by a group of employees (with respect to a

            single common issue) or by the Association,

            involving  the  meaning,  interpretation,  or

            application of the express provisions of this

            Agreement.

 

By this contract definition the parties have limited grievances to

alleged violations of expressed provisions of the Collective

Bargaining  Agreement.    Thus,  an  arbitrator's  authority  is

specifically limited to the interpretation and application of

particular clauses of the parties' Collective Bargaining Agreement.

            The power of the Patrol to make management decisions is

left  unimpaired  unless  specifically  circumscribed  by  this

Collective Bargaining Agreement. Under the recommended language an

arbitrator will not be placed in the position of reviewing

decisions of the Patrol on matters outside the express terms of the

Collective  Bargaining  Agreement.     Article  2,  Management

Responsibilities, contains a detailed and exhaustive review of the

exclusive  rights  retained  by  management  to  operate  the

organization.  In this manner the Patrol is protected against an

arbitrator infringing on management's rights to manage the Patrol

without union interference.  Arbitration of discipline grievances

does not mean the power to discipline and to determine the level of

discipline has been delegated to a third party.

            The basic purpose of a grievance procedure is to provide

a forum where disputes arising in the workplace can be addressed

and resolved quickly and efficiently.  Without a working grievance

procedure  complaints  of  employees  will  fester  unanswered.

Employees will become embittered with a subsequent adverse impact

on morale and productivity.  The absence of binding arbitration by

a professional arbitrator discourages employees from voicing their

concerns because of the perception management is free to do

whatever it wants regardless of the contract requirements.   A

grievance procedure concluding in binding arbitration will create

a therapeutic device for the parties to encourage settlement and

examine the interpretation and application of the Collective

Bargaining Agreement as it applies to disciplinary issues. Binding

arbitration will also encourage professional conduct in handling of

grievances at the lower levels of the grievance procedure because

both parties will be aware that in the event they fail to resolve

their differences, the dispute will be subject to review by a

neutral third party.

            In order for mature and stable relations to exist between

the parties, both labor and management must understand and accept

the grievance procedure as a viable and effective means to address

problems arising out of the contract.  An integral part of any

modern grievance procedure  is  binding arbitration.    Binding

arbitration as the final step of the grievance procedure is an

established and proven method of fair and just determination of

contract grievances.

            The Patrol's position that grievances should be resolved

by the  Chief,  courts  or the  Disciplinary Appeals  Board  is

unpersuasive.     The  courts  are  charged  with  the  primary

responsibility to deal with questions of statutory law,  not

allegations that a private labor contract has been violated.  The

Disciplinary Appeals Board lacks the expertise in labor-management

relations to resolve complex issues of contract law.  This point

was  illustrated when one of  the management members  of  the

Disciplinary Appeals Board could not give a rudimentary explanation

of the contract meaning of just cause.

            Moreover, Patrol's claim that it is in a better position

to resolve grievances than a neutral arbitrator misses the point.

Binding arbitration does not remove the ability of the Patrol to

determine discipline and settle disputes.  It is the experience of

most parties to a collective bargaining agreement with arbitration,

that the vast majority of grievances are resolved by the parties

without the assistance of a neutral arbitrator.  However, for those

few disputes which the parties cannot resolve, arbitration by a

person who has no interest in the outcome of the grievance is

required.  This point is particularly important in a governmental

agency where political forces are direct and strong.

            The contract between the Association and the Patrol is a

mutual one.   If one party to the agreement has the power to

interpret the meaning of the words used to frame the agreement, it

may interpret the agreement in light of its own needs.  Whether

this is actually done or not, the employees will perceive such

power as a fact.  The direct result of a system where one of the

parties to the contract has the power to decide what it means is to

destroy any faith that a viable grievance procedure exists.  The

absence of confidence in the grievance procedure will result in a

lack of the ability of the parties to mutually resolve disputes

within the contractually agreed contract procedure.   In the

judgment of this Factfinder, labor relations in this organization

will best be served by a grievance procedure which concludes in

binding arbitration by a neutral person outside of the patrol who

is unaffected by the politics of the organization.

            A binding arbitration provision does not represent the

abandonment of any necessary authority of the Patrol.  Absence of

arbitration does not eliminate third party adjudication of the

Collective Bargaining Agreement.  Without binding arbitration the

courts are the final arbiter of collective bargaining disputes,

just as they are for other contracts held by the Patrol.  Evidence

presented by the Association established that the current system

simply does not provide a meaningful review of disciplinary

actions.

            Public policy favors the resolution of labor contract

disputes by arbitration.  The Washington Courts, the Washington

Employment Relations Board and the National Labor Relations Board

have adopted a policy of deferring to arbitration as the favored

means to settle labor disputes arising out of a labor contract.

The U. S. Supreme Court has also placed its stamp of approval on a

policy of resolving labor disputes by means of arbitration. United

Steelworkers of America v. Enterprise Wheel and Car Corporation;

363 US 593 (1960).

            Regarding the factor of comparability, the Association's

uncontradicted evidence established binding arbitration by a

neutral person is the norm in law enforcement contracts.  Binding

arbitration in Oregon police contracts is a well established and

accepted  means  of  resolving  disputes  arising  under  labor

agreements.  Since 1985, the Oregon State Police contract provides

that all discipline is appealed to a neutral arbitrator.   The

California  Highway  Patrol has  in place  a  system where  the

discipline is appealed to the state personnel board, an independent

agency unconnected with the California Highway Patrol.   An

administrative law judge hears the case and issues a decision.

            Turning to the discipline and appeals system in place for

other law enforcement officers in the state of Washington, the

practice is uniform that disciplinary appeals are heard by a person

who is neutral and independent of the law enforcement. agency.

(Assn. Ex. C).  The Association Exhibit established that in 18

major law enforcement agencies in Washington disciplinary appeals

are ultimately resolved by a neutral arbitrator, board or panel.

The Patrol should not continue a system that is obsolete and unique

to the practices in place for other law enforcement officers in

Washington, California and Oregon.

            Accordingly, the Factfinder is persuaded that the time

has come for the parties to include binding arbitration for

disciplinary grievances in their Collective Bargaining Agreement.

 

                                    RECOMMENDATION

 

            The Factfinder recommends the following changes to be

included in the successor contract.

 

            1.         Article 15 should be amended to read:

 

            A.        Discipline.     Disciplinary  actions,

            including discharge, shall be for cause only.

            Employees may not be given unsatisfactory

            performance  evaluations  except  for  cause.

            Written reprimands and disciplinary transfers

            may  be  appealed  through  the  Grievance

            Procedure.

 

            C.        Disciplinary Appeals Board

 

                        (Delete Entire Section)

 

            2.         Article 16, Section E as currently written

            should be deleted and new language added to

            state:

 

            E.         Appeals.  An employee who believes that

            he/she has been disciplined without just cause

            shall have one of two routes of appeal:  (1)

            the established statutory disciplinary process

            Trial Board and/or Superior Court; or (2) the

            grievance procedure established herein.   An

            employee electing to appeal discipline shall

            be required to specify,  in writing, which

            appeal route is chosen,  and to waive all

            rights to the other appeal mechanism.

 

                                    ISSUE 2:  Residency

 

            Background

 

            Present contract language establishes residency rules for

members of the bargaining unit.   Depending on the assignment,

different residency requirements may apply to individual troopers.

The primary residency standard is contained in Section F(1)(a),

which provides that employees assigned to the Field Operations

Bureau must live within 10 miles of their assigned patrol area.

Depending on their assignment, other members are required to reside

within 35 miles of the workplace or within 60 minutes travel time

of their duty station.

            The Patrol proposed several changes to the existing

contract requirements with respect to residency.  The Association

would continue the existing contract language.

 

            A.        The Patrol

 

            The Patrol proposed new language which would read as

follows:

 

            b.         When assigned to field force and hold the

            rank of sergeant, reside within fifteen (15)

            miles of the detachment office to which they

            are assigned.

 

            c.         If assigned to District 2 (excluding those

            troopers and sergeants assigned to North Band

            and Enumclaw) reside within ten (10) miles of

            the King County boundary.  Overtime for court,

            callout,  etc.  for  troopers  and  sergeants

            residing more than ten (10) miles from their

            area  of  assignment  shall  commence  and

            terminate when they reach the ten (10) mile

            boundary of their assigned area.

 

            f.          If assigned to Safety Education, reside

            within their assigned area and within twenty-

            five (25) miles of the office designated as

            their primary base of operations.  Exception:

            Safety Education troopers assigned to King

            County shall reside within ten (10) miles of

            their  assigned  area  and  comply  with  the

            requirements of Section E, Subsection 1.c. of

            this Article.

 

            The Patrol takes the position that it wants its employees

to be part of the communities in which they serve both as citizens

and officers.  According to the Patrol, community policing means

that officers should be involved in local service clubs, social

activities, athletic teams, etc. When the trooper lives outside of

the community, it reduces his or her ability to do community

policing.  This is particularly true with respect to sergeants who

have supervisory duties in a particular area.  The Patrol believes

the community can be best served by having a supervisor residing in

the area in which he or she supervises.   Further, the Patrol

maintains that when the sergeant lives outside of the assigned

service area the sergeant's ability to supervise is impaired.  If

a sergeant lives outside of the community for which he has

responsibility the sergeant is not readily accessible for part of

that community.  Thus, the Factfinder should recommend adoption of

the Patrol's proposal with respect to residency requirements.

            The Patrol called several commanders who testified with

respect to a situation at Colfax.  The sergeant in Colfax had a

permanent residence in Spokane but lived on a temporary basis

during the week in Colfax.  Management witnesses testified that

this conveyed the impression to the Patrol members assigned to

Colfax that the sergeant does not want to be there and is only

looking to move on to a different assignment.  The Patrol is also

concerned that in an emergency situation the sergeant would be too

far away to respond within a necessary time frame.  The problem is

particularly acute in the rural areas where the number of sergeants

available is limited.  The Factfinder should recomme nd adoption of

the Patrol's proposal as a reasonable response to its concerns for

a police presence in the community both as a supervisor and as a

citizen.

 

            B.        The Association

 

            The Association counters that residency requirements are

disfavored in Washington for law enforcement officers.   RCW

41.08.175 forbids residency requirements for city police officers.

By virtue of this statute, residency requirements for city police

officers are unknown.  The Association also knows of no county

which has residency requirements for its law enforcement officers.

            Moreover,  the Association argues that the residency

requirements in the current Collective Bargaining Agreement are- far

beyond those which are in place in the comparable jurisdictions.

The Oregon State Police contract requires employees to live within

45 minutes driving time of their duty stations.  The California

Highway Patrol requires employees to maintain California residence

and to live in "such proximity to their command or headquarters

office as will assure their ability to respond to an emergency

within a reasonable length of time or to allow equitable assignment

of departmental responsibility."  The evidence establishes that

stringent residency requirements for law enforcement officers are

not the norm in the comparable jurisdictions.

            A practical reason also exists for rejecting the Patrol's

proposal with respect to residency.  According to the Association,

whenever residency requirements are tightened, the ability of

troopers to transfer from job to job is correspondingly limited.

The lack of flexibility can lead to troopers being required to

purchase homes in places where the real estate market will simply

not allow troopers to sell the home at a fair price upon transfer

or promotion.  In addition, the cost of housing in a particular

community may exceed the trooper's ability to purchase a house

within the area to which he or she is assigned.  Sergeants should

not have to pay a financial penalty as the result of unduly

restrictive residency requirements.   Sergeant Annette Sandburg

testified with regards to community policing that it has nothing to

do with residency.  Community policing means the law enforcement

officer becomes aware of community organizations which can be

utilized to provide services and fulfill needs of the citizens.

Sandburg  also  testified  that  in  her  case  she  turned  down

promotional opportunities because the residency requirements would

have limited her choice to "sleazy areas" or to those which were

totally out of her price range.  Adding additional restrictions to

those already in place would further narrow her possibilities for

transfer and advancement in the organization.

            The Association argues that the adoption of the Patrol's

proposal will create a disincentive for its members to seek an

advancement or transfer within the organization.    Nor has the

Patrol presented evidence of an operational need to have tighter

residency requirements.   The Colfax example does not prove the

Patrol's case because other avenues were available to solve the

problem at Colfax.  Further, the Patrol's proposal would apply to

every detachment throughout the state of Washington.  The Patrol

admits the problem it sees is primarily one existing in the rural

areas of Washington.   Since the Patrol has failed to meet its

burden of proof, the Association submits the Factfinder should

recommend continuation of present contract language.

 

C.        DISCUSSION AND FINDINGS

 

            The Factfinder finds that with the exception of Section

c, the Patrol failed to present a persuasive case for further

tightening of the residency requirements.  The starting point for

analysis of this issue is recognition of the fact that present

residency requirements are far stricter than in any of the

comparable jurisdictions. Neither the California Highway Patrol or

the Oregon State Police have residency requirements anywhere near

as restrictive as those now in place for Washington troopers.

            RCW 41.08.075 argues against recommending the Patrol's

proposal.  By statute residency requirements are unlawful for city

police officers.   Further,  there is no  evidence county law

enforcement  officers  in Washington are  subject  to residency

restrictions.  The Factfinder must conclude residency requirements

are not an established working condition for law enforcement

officers in the state of Washington.

            The Factfinder concurs with the Association that the

Patrol failed to demonstrate an operational need for additional

limitations  on where  employees must  live  to continue their

employment with the Patrol.  Part of the problem on this issue

concerns the rural versus urban situation where availability of

housing for sergeants becomes a critical issue.   The Patrol's

proposal makes no distinction between members stationed in rural

and urban areas.  All sergeants would be subject to the increased

restrictions on where they could live without reference to the

availability of satisfactory housing.

            The Patrol's reliance on the supervisory situation in

Colfax to justify its proposal is found unpersuasive.  First, the

Colfax situation was the only specific example cited where problems

allegedly existed with the absence of a supervisory presence.

Second, the Association evidence established the concern of the

troopers at Colfax was not the lack of a sergeant who lived in

Colfax but the frequent turnover of sergeants in the detachment.

Third, the sergeants in Colfax did maintain a residence in Colfax.

            In sum, the record evidence revealed no operational needs

for a stricter residency requirement, comparability is totally

against  the  Patrol's  proposal,  and  the  current  residency

limitations  strike a fair balance between personal needs of

employees and the Patrol's requirement for a supervisory presence

at the detachment.   Thus, the Factfinder concludes the current

contract language should be continued with one exception.

            At the hearing the Association declared it was willing to

accept the Patrol's proposed language set forth in Section c.  The

Factfinder will recommend Section c of the Patrol's proposed

language for inclusion in the new contract.

 

                                    RECOMMENDATION

 

            The Factfinder recommends that current contract language

be continued unchanged with the addition of new language to state:

 

            c.         If assigned to District 2 (excluding those

            troopers and sergeants assigned to North Band

            and Enumclaw) reside within ten (10) miles of

            the King County boundary.  Overtime for court,

            callout,  etc.  for  troopers  and  sergeants

            residing more than ten (10) miles from their

            area  of  assignment  shall  commence  and

            terminate when they reach the ten (10) mile

            boundary of their assigned area.

 

                                                                                    Respectfully submitted,

 

 

                                                                                    Gary L. Axon

                                                                                    Factfinder

                                                                                    Dated: January 10, 1992

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