And
Fact
Finding
Arbitrator: Gary L. Axon
Date
Issued:
Arbitrator:
Axon; Gary L.
Case #: 09244-F-91-00164
Employer:
Date Issued:
IN THE MATTER OF FACTFINDING )
)
BETWEEN ) FINDINGS OF FACT
TROOPERS ASSOCIATION, ) AND RECOMMENDATIONS
) OF
Association, )
) GARY L. AXON
and )
) FACTFINDER
STATE OF
)
Patrol. )
HEARING SITE: Westwater Inn
HEARING DATE:
POST-HEARING BRIEFS: None
RECORD CLOSED:
REPRESENTING THE ASSOCIATION: Will Aitchison
Aitchison, Hoag, Vick
&
Tarantino
REPRESENTING THE PATROL: Chip Holcomb
Senior
Counsel
Assistant
Attorney General
State
of
FACTFINDER: Gary
L. Axon
1465
Pinecrest Terrace
(503)
488-1573
BACKGROUND
The Patrol is responsible for general law and traffic
enforcement in the
state of
enforcement
mission of the Patrol is traffic enforcement throughout
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
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
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
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
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
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