City
of
And
Interest
Arbitration
Arbitrator:
Date
Issued:
Arbitrator:
Snow;
Case #: 06502-I-86-00148
Employer:
City of
Date Issued:
IN THE MATTER OF INTEREST
ARBITRATION
BETWEEN
AND
CITY OF
(PERC No. 6502-I-86-148)
FINAL REPORT
Lieutenant John Carson
Association's Party Appointed
Arbitrator
M. Carol Laurich
City's Party Appointed
Arbitrator
Professor Carlton J. Snow
Neutral Arbitrator and
Chairman
of the Arbitration Panel
Table of Contents
Page
I. INTRODUCTION 1
II. THE NATURE OF INTEREST ARBITRATION 9
III. ISSUES IN DISPUTE 14
IV. PROCEDURAL RULING 16
V. THE ISSUE OF WAGES 17
VI. THE ISSUE OF SPECIALTY PAY 68
VII. THE ISSUE OF CAREER DEVELOPMENT INCENTIVES 70
VIII. THE
ISSUE OF DISCIPLINE 76
AWARD 87
IN THE MATTER OF INTEREST )
ARBITRATION ) Lieutenant John Carson,
)
Association's Party Appointed
BETWEEN ) Arbitrator
)
ASSOCIATION ) Employer's Party Appointed
) Arbitrator
AND )
) Professor
CITY OF
(PERC
No. 6502-I-86-148) ) of
the Arbitration Panel
FINAL REPORT
I. INTRODUCTION
This
matter came for hearing pursuant to RCW 41.56.450
which states:
If agreement has not been reached following
a reason-
able period of negotiations and mediation,
and the
Executive Director, upon the recommendation
of the
assigned mediator, finds that the parties
remain at
impasse, then an interest arbitration panel
shall
be created to resolve the dispute.
After the parties in this case found
themselves at impasse
and participated in mediation, they
presented the unresolved
issues to a panel of interest
arbitrators. There has been no
challenge to the statutory authority of the
panel to resolve
the dispute.
The
arbitration panel has followed statutory requirements
set forth in RCW 41.56.450-41.56.460 as well
as WAC 391-55-205 -
391-55-255 in deciding this matter. By mutual agreement, the
City and the Association selected Professor
as the neutral member of the panel. Pursuant to WAC 391-55-205,
the parties appointed as partisan
arbitrators Ms. Carol
Laurich
to serve as the Employer's party appointed arbitrator
(after Ms. Lizanne
Lyons, the original appointee, found it
necessary to become a witness for the City)
and Lieutenant
John Carson as the party appointed
arbitrator for the
Association.
Mr. James Pidduck,
represented the City of
ings, and Mr. James H. Webster of
the Webster, Mrak and Blumberg
law firm in
Police Management Association.
Hearings
occurred on January 30-31, February 1-2, and
Police Station located at
manner.
There was a full opportunity for the parties to sub-
mit evidence, to examine and
cross-examine witnesses, and to
argue the matter. All witnesses testified under oath as
administered by arbitrator. The advocates fully and fairly
represented their respective parties. Ms. Wanda L. Williams,
Court Reporter of
ceedings
for the parties and submitted a transcript of 1,495
pages in six volumes.
The
parties elected to submit post-hearing briefs in
the matter, and they submitted combined
briefs of approxi-
mately 178 pages. The neutral arbitrator continued to receive
evidence from the parties until
time he officially closed the hearing; but
correspondence
from the parties and contact with them by
conference calls
continued until
thirty day time limitation for issuance of a
decision by
the arbitration panel in this case.
With
its post-hearing brief, the Association submitted
three arbitration awards for consideration
by the neutral
arbitrator.
In a letter of
objected to the Association's inclusion of
two of the awards,
namely, Public Safety Employees', Local
509 and
as well as the City of
Guild. It was the position of the Employer that
those awards
amounted to submission of new evidence and
tended to impeach
the validity of the Runzheimer
Report (a report to be dis-
cussed later in this report) after the close
of the hearing.
On
eration
by the arbitration panel a third award, namely, the
award in the City of
of Firefighters, Local 27. The Association requested that
the arbitration panel take arbitral notice
of this decision
and stated:
This is particularly true because, with
respect
to the cost of living arguments advanced by
the
City, the
panels [sic] and the
proceeding had before them a record
identical to
the record before the panel in this
case. Speci-
fically,
transcripts of the testimony and exhibits
concerning the Runzheimer
report offered in the
were introduced as exhibits in the Fire
proceed-
ing. (See, letter of
to
Professor Snow).
On
objection to the Association's submission of
the IAFF award
on the basis of the fact that it was
untimely. (See, letter
of
As
a general rule, labor arbitrators have ignored evi-
dence submitted by one of the
parties after a hearing has
been concluded. The problem, of course, is that the other
party has been denied an opportunity to
refute the new evi-
dence. The more customary approach in arbitration
has been
for a party desiring to submit new evidence
to request that
the hearing be reopened, on the theory that
it can be demon-
strated
that the new evidence was unavailable at the time of
the hearing and is important to a resolution
of the dispute.
If the evidence was available at the time of
the hearing, of
course, it ought to have been submitted
then, or at least
some substantial reason ought to be
presented that explains
the nonproduction
of the new evidence at the time of the
hearing.
(See, for example, Food Employers Council, Inc.,
67 LA 328 (1976); Madison Institute, 18
LA 78 (1952); and
Shopping Cart, Inc.,
350 F. Supp. 1221 (1972)). In the ordi-
nary case, additional evidence submitted
after a hearing has
been concluded will not be considered by an
arbitrator.
A
practice of long standing among some arbitrators has
been for them to research and take notice of
other arbitration
awards.
The principle of stare decisis
has not taken root in
labor arbitration, but awards of other
arbitrators have been
utilized for guidance and in an effort to
evaluate the reason-
ing of a decision maker that
might have been applied to a
similar problem. It is well understood that it is an arbi-
trator's
responsibility to exercise independent and impartial
judgment with respect to the issues being
considered, but it
also is prudent to give respect to the
wisdom and experience
of others.
As one arbitrator has put it:
As to arbitral decisions rendered under
other
contracts between parties not related to
those
in
the case at hand, usefulness depends upon
similarity of the terms and of the
situations
to which they are to be applied. They must
be weighed and appraised, not only with
respect
to these characteristics, but also with
regard
to the soundness of principles upon which
they
proceed.
Certainly an arbitrator may be aided
in formulating his own conclusions by
knowledge
of how other men have solved similar
problems.
He ought not to arrogate as his own special
virtues
the wisdom and
justice essential to a
sound decision. (See, Merrill, "A Labor Arbi-
trator
Views His Work," 10 Vand. L. Rev. 789,
797-798 (1958)).
By enclosing a copy of decisional materials,
a party merely
expedites the process of research by making
readily avail-
able public documents which could have been
cited in the
brief and secured by the arbitrator. (See, RCW 41.56.450).
Use of decisional material from other
arbitrators is not
unlike the concept of judicial notice. It customarily is
assumed that a judge is free to take notice
of the work already
done by the courts. One treatise on evidentiary rules has
described
the process of "notice" as follows:
Usually there is recourse to statutes, court
rules, or cases that are referenced by
citation
without
any need to
introduce into evidence
the original (or copies) of the pertinent materi-
als. (See, Lilly, An Introduction to the Law
of Evidence, p. 15 (1978)).
It, of course, is important to stress that
taking "notice"
of previous awards does not mean that they
have been used
in any precedential
sense or that they have been treated as
new evidence. Rather, the materials merely have provided
guidance with respect to the reasoning
process applied to
similar problems and situations as those
faced by this arbi-
tration
panel. Consequently, it is reasonable to
conclude
that the panel properly may consider the
awards to which the
Employer has objected.
It
also must be recalled that the Association vigorously
challenged the validity of the Runzheimer Report during the
arbitration hearings. Consequently, for the Association to
include arbitration decisions that allegedly
support its
position in this respect serves simply as
further argument
on an issue thoroughly explored at the
hearings. Any sur-
prise the Employer may have
suffered from the inclusion of
the material with the Association's
post-hearing brief has
been
cured by the arbitration panel's consideration of the
Employer's rebuttal letters. Accordingly, the arbitration
panel has considered all three of the
arbitration awards
submitted by the Association with its
post-hearing brief as
well as the rebuttal letter offered by the
City on November 10,
1987.
A
procedural requirement has been set forth in WAC
391-55-220 which states that:
At least seven days before the date of the
hear-
ing, each
party shall submit
to the members
of
the panel and to the other party written
proposals on all of the issues it intends to
submit to arbitration.
The Employer failed to comply with the
regulation, and
there
is a dispute about the existence of a waiver that
would have released the City from
compliance. The City
sought a ruling from the Washington Public
Employment Rela-
tions Commission with respect to
the impact of the Associa-
tion's allegation.
The
Commission, in effect, returned the matter to
the arbitrator and offered the following
guidance to the
neutral chairman with respect to the meaning
of WAC
391-55-220:
The regulation
in question consists
of
two
sentences. The first
concerns proposals
of parties, which must be submitted at least
seven days prior to the date
of the hearing.
The second concerns issues, which
must be iden-
tified earlier
in the process.
The reason
the
regulation requires that
all issues be
identified at least
during the final
stages
of negotiations is to ensure an orderly arbi-
tration process.
Proposals may be exchanged
even after a dispute has been certified for
interest arbitration, but the final
positions
of the parties need to be made known to one
another at a
set date prior to hearing, so
that preparation may be made for hearing.
The
question before us concerns the late
submission of proposals, as opposed to
issues.
The
regulation does not
expressly provide
a
sanction for submitting
a proposal within
the
seven-day period. The
second sentence
of WAC 391-55-220 only allows suppression of
an issue, and then only when that issue was
not brought up at an earlier point in time.
That sentence is not applicable to the submis-
sion
of proposals. (See, Decision 2735-PECB,
pp. 3-4, 1987).
The
Commission was clear in its instruction that, for
any sanction for a late proposal to be
appropriate, there
must be "demonstrable prejudice to the
party receiving it."
(See, Decision 2735-PECB, p. 4). If the late proposal were
the same as previous proposals, there is a
presumption of
a lack of prejudice; and it would be
inappropriate to impose
a sanction.
The Association failed to show demonstrable
prejudice in this case, nor did the
Association establish
that it had been harmed in its ability to
prepare its case.
It is reasonable to conclude that no remedy
is appropriate
in this case and that the panel has
jurisdiction to consider
all proposals submitted to it.
The
arbitration panel has complied with requirements
of RCW 41.56.460 in reaching its decision in
this case. The
framework for proceeding has been set forth
in RCW 41.56.014
where the statute states:
The intent and purpose of this chapter is
to promote the continued improvement of the
relationship
between public employers
and
their employees
by providing a uniform basis
for implementing the right of public
employees
to join labor organizations of their own choos-
ing
and to be represented by such organiza-
tions
in matters concerning their employment
relations with public employers. (Emphasis
added).
The legislature has made clear that interest
arbitration
has been established as an alternative means
of dispute
resolution by recognition of the fact that
public policy in
the state does not favor strikes by
uniformed personnel.
Factors set forth by RCW 41.56.460 for
consideration in
cases of this sort and which factors have
been carefully
evaluated by the arbitration panel are as
follows:
(1 ) The
constitutional and statutory authority of the
Employer;
(2) Stipulations
of the parties;
(3) A
comparison of 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;
(4) The
average consumer prices for goods and services,
commonly known as cost of living;
(5) Changes
in any of the foregoing circumstances
during the pendency
of the proceedings; and
(6) 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.
II. THE
NATURE OF INTEREST ARBITRATION
Several
observations about the nature of interest arbi-
tration
will help define the context for the
decisions
reached by the arbitration panel. Interest arbitration is a
process by which there is a binding
determination of contrac-
tual terms. While it is a modern day response to statutory
prohibitions against public sector strikes,
interest arbitra-
tion has deep historical roots in
the United States. As
early as 1871 , the coal industry in
Pennsylvania used the
services of a neutral third party to
determine contractual
terms, including wages. (See, Mote, Industrial Arbitration,
p. 192 (1916)). Depending on the pendulum swing, labor organi-
zations
have vigorously disapproved of interest arbitration
or employers have objected to its use. (See, Gershenfeld,
Thirty-sixth Annual Proceedings of the
National Academy of
Arbitrators, p. 191 (1984); and Mote, p.
208).
Most
parties in labor-management relations are familiar
with grievance arbitration, a judicially
oriented process
that attempts to define the rights of
parties under an exis-
ting contract pursuant to well established
standards of con-
tract interpretation. Interest arbitration is quite differ-
ent. Arvid Anderson,
president of the National Academy of
Arbitrators, has offered the following
observation about
interest arbitration. He stated:
Interest arbitration is essentially a
legislative
process, while grievance arbitration is
essentially
a judicial process. (See, 3 The Labor Lawyer 745 (1987)).
Interest arbitration focuses on statutory
standards and is
based on procedures and criteria specified
by the law.
Although mindful of the legislative cast to
interest arbi-
tration,
the Washington Supreme Court has sustained the
constitutionality of interest arbitration.
(See, City of
Spokane v. Spokane Police Bureau,
87 Wash. 2d. 457, 553 P.2d
1316 (1976)).
Interest
arbitration responds to special problems of
collective bargaining that surface most
uniquely in public
sector disputes. On one hand, implicit in legislative enact-
ments in Washington with respect to
interest arbitration is
the public policy that employes
without access to ordinary
procedures in collective bargaining ought to
be protected
against the unilateral imposition of wages
and conditions of
employment by the Employer. On the other hand, legislative
representatives have recognized that
allowing these public
employes
to engage in a work stoppage would give them an
unfair advantage over the public
employer. That is, some
public employes
have a greater capacity for inflicting harm
on the public than do employes
in the private sector. More-
over, unlike employers in the private
sector, public employers
ordinarily cannot put forth a
persuasive "inability to pay"
argument.
Thus, "unhampered by such market restraints, a
union that can exert heavy pressure through a strike may
be able to obtain excessive wages and
benefits." (See,
Block, "Criteria in Public Sector
Disputes: Arbitration and
the Public Interest," Proceedings of
the Twenty-fourth
Annual Meeting, National Academy of
Arbitrators (1971)).
The
point is this: interest arbitration is
not intended
to give public employes
every concession that they could
extract from a public employer. Interest arbitration is a
substitute for a work stoppage in the sense
that it provides
public employes an
alternative forum in which to press those
issues they have been incapable of resolving
at the bargain-
ing table. It must be stressed that the interest
arbitrator
is an extension of the negotiation process
and, in part, makes
an effort to accommodate interests of the
public employer
(and the citizens they represent) with
interests of the
employes
who have requested interest arbitration.
The
Washington legislature has concluded that
interest arbitra-
tion is the best available
alternative for balancing interests
of employers and uniformed personnel in the
state. By care-
fully delineating the issues subject to
interest arbitration
and clearly defining statutory criteria to
be applied by
interest arbitrators, members of the
legislature have attempted
to protect the interests of all parties,
including the general
public.
It
seriously misconceives the purpose and function of
interest arbitration to use it as a means of
accumulating
guidelines with which the parties may settle
later contract
negotiations. That is not the purpose of interest arbitra-
tion. Like a strike in the private sector, the
outcome of
an interest arbitration is designed to be
uncertain and to
provide both parties with a substantial
risk. The objective
of interest arbitration is not to produce predictability
for
future negotiations. Otherwise, the parties will view
interest arbitration, not as a last resort,
but as the inevi-
table conclusion to virtually every
negotiation. If interest
arbitration is viewed as a place for
collecting guidelines to
be used in future negotiations, there will
be little incen-
tive for the parties to bargain
toward a realistic settlement
because they will know that, ultimately, an
interest arbitra-
tor will perform the job for
them. When the parties begin to
view interest arbitration as a place to
garner guidelines for
future negotiations, "the leaderships
of union and management
alike are relieved not only of the
responsibility for ratifi-
cation or approval of negotiated
contracts, but, more alarm-
ingly, relieved of responsibility
for everything that is in
the contract, other than for formulating
demands." (See,
Zack, "The Arbitration of Interest
Disputes: a Process in
Peril," 41 Arb.
J. 38, 42 (1986)).
As
a general rule, when one confronts an interest arbi-
tration
situation involving a large number of unresolved
issues or containing economic proposals that
are extremely
far apart, there is a suspicion that the
parties are either
inexperienced with the process or that there
has developed
a dependency-like reliance on interest
arbitration. It is
important to highlight the fact that using
interest arbitra-
tion in the way previously
described makes it a substitute,
not for the strike, but for the collective
bargaining process
itself.
RCW 41.56.430 is clear about the fact that interest
arbitration has been designed as an
alternative to a strike
by uniformed personnel and not as an
alternative to diligent
collective bargaining by the parties
themselves.
It
is correct that the goal of interest arbitration is
to produce a final decision that will, as
nearly as possible,
approximate what the parties themselves
would have reached
if they had continued to bargain with
determination and good
faith.
But every interest arbitration decision must remain
"case specific." It is detrimental to the bargaining relation-
ship of the parties for them to view
interest arbitration as
a means of developing guidelines to be used
in their future
relationship. Only by making each interest arbitration case
"case specific" can the integrity
of the parties' own process be
retained.
The purpose of interest arbitration is not to pro-
vide guidelines for future negotiation, for
such an approach
removes the process from the parties'
control in the future.
What an interest arbitrator does is attempts
to inject some
realism into the parties current agreement in order to pro-
vide a model for realistic negotiations in
the future, but
the lesson for the future ought to be that
the parties' most
predictable bargain can be struck by
themselves at the bar-
gaining table.
It
is incorrect to conclude that this approach to inter-
est arbitration makes it a standardless procedure.
There are
statutory standards to be applied, and they
have been set
forth in RCW 41.56.460. Those standards, however, are to be
applied in a "case specific" and
are not to be viewed as a
mandate for giving the parties guidelines to
be followed in
future negotiations.
Nor
does an interest arbitrator in one case want to set
forth guidelines that hobble a future
interest arbitrator
hearing a dispute for the same parties. The statutory guide-
lines in Washington are set forth with
sufficient specificity.
Some statutes, such as Washington Public Act
312, direct an
interest
arbitrator to give weight to compensation presently
received by the employees, including direct
wage compensation,
vacations, holidays, and other excused time,
insurance and
pensions, medical and hospitalization
benefits, the continuity
and stability of employment, and all other
benefits received.
The point is that this is a factor which
normally and tradi-
tionally
is taken into consideration when determining wages
and conditions of employment.
This
statute also directs the arbitration panel to take
into consideration the cost of living. This standard, how-
ever, has not been defined by the
legislature. The cost of
living is a criterion that received special
scrutiny in
these proceedings. Presumably, the legislature intended that
money earnings would be inflated in an
effort to obtain "real"
earnings, as the method customarily used in
that process is
to rely on the Consumer Price Index. Yet, the Consumer Price
Index is not really a cost of living index
because it is not
responsive to purchasing patterns of a
particular employe
during the relevant time period. Despite its imperfections,
however, the Consumer Price Index has become
the standard
method for measuring changes in the cost of
living. The
point is that, although "cost of
living" is a statutory
standard to be considered in interest
arbitration decisions,
the Consumer Price Index does not provide a
scientifically
precise instrument for making decisions
about cost of living
adjustments.
It provides a useful source of guidance but,
by no means, is definitive.
Historically,
a most important criterion and the statu-
tory standard set forth in RCW
41.56.460(c) is a comparison
with the wage structure of others. As Arvid Anderson,
who
chairs the Office of Collective Bargaining
in New York City,
has stated:
The most significant standard for both
[inter-
est] arbitration
and collective bargaining
in the public service is comparability. Com-
parability relates
to the subject matter at
bargaining and the question of with which em-
ployers and
employees the comparison
should
be made.
(See, 3 The Labor Lawyer
745, 750
(1987)).
The legislature has directed that comparison
be made with
"like personnel of like employers of
similar size on the
west coast of the United States." (See, RCW 41.56.460).
Another
important standard is the employer's ability
to pay.
That is, the interest arbitrator is called on to
give consideration to the basic economic
circumstances con-
fronting an industry or enterprise. The burden of proof with
respect to this criterion, however,
customarily has been
placed on the employer, and it has been
unnecessary for a
union to respond to such a standard, except
as it has been
raised as an affirmative defense by an
employer. The
legislature in RCW 41.56.460, of course, has
not expressly
stated "ability to pay" as a statutory
standard. The United
States Supreme Court has been clear about
the fact that, if an
employer asserts the defense of
"inability to pay" and refuses
to substantiate the claim, the employer may
be guilty of the
failure to bargain in good faith. (See, National Labor
Relations Board v. Truitt Manufacturing
Company, 351 U.S.
149 (1956)).
While
statutory standards have been set forth in RCW
41 .56.460, there has been no legislative
statement with respect
to what weight should be attached to any
particular criterion
among the standards. Arbitrator Arvid
Anderson has observed,
in discussing a similar list of statutory
criteria for inter-
est arbitrations in Michigan,
"the enumeration of the criteria
seems designated not to limit the
arbitrators, but to allow
them the broadest scope in considering
whatever factors they
deem important in a particular case so long
as they pay atten-
tion to the other
factors." (See, Block,
"Criteria in Public
Sector Interest Disputes: Arbitration in the Public Interest,"
1971 Proceedings of the Twenty-Fourth Annual
Meeting, National
Academy of Arbitrators, 161, 167-178). At the same time, it
is reasonable to believe that an arbitrator
may not focus on
one statutory criterion, such as
stipulations of the parties,
to the exclusion of all others. In other words, the legisla-
ture clearly intended that, on the
basis of evidence pre-
sented by the parties, an interest
arbitrator carefully must
balance the values inherent in each of the
criteria set forth
in the statute. In this way, employes
may be assured of
receiving working conditions and an income
comparable to
those in their profession and locality,
while the employer
may be assured that it will be able to
recruit in the local
labor market. Additionally, negotiating teams for both
sides
will be given guidance with respect to the
reasonableness of
their respective proposals.
Interest
arbitration requires a consideration of vari-
ous economic forces and
circumstances confronting the parties
in their collective bargaining relationship. By giving sub-
stantial
weight to comparability data, there is an attempt to
give rationality to what is essentially a
legislative pro-
cess. Assuming the Employer is not a wage leader, compari-
sons have been attractive as a source of
guidance in interest
arbitration because they "seem to offer
a presumptive test
of the fairness of a wage." (See, Feis, Principles
of Wage
Settlement,
p. 339 (1924)). Even though agreeing
about some
aspects of the entities with which the
parties should compare
themselves, they have disagreed vigorously
with respect to the
impact of the comparative data in the
various jurisdictions.
III. ISSUES
IN DISPUTE
The
parties submitted the following issues for consider-
ation by the arbitration panel:
Page
1
. Procedural Ruling 1
6
2. The Issue of Wages
A. Proposals 17
B. Discussion 17
(1) Comparisons 19
(2) The "Labor Market" 30
(3) Internal Wage Structure 37
(4) Runzheimer
Report 39
(a) Evidentiary Problems 42
(b) Accuracy of the Report 43
(c) Application of the Data 48
(5) The Knowles Theory 51
(6) A Wage Increase 54
(7) Later Years of the Agreement 65
3. Specialty Pay 68
A. Proposals 68
B. Discussion 68
4. Career Development Incentives 70
A. Proposal 70
B. Discussion 71
5. The Issue of Discipline 76
A. Proposal 76
B. Discussion 76
Placing Just Cause in Context 77
6. Award 86
IV. PROCEDURAL
RULING
The
Association submitted a Motion for Default pursuant
to WAC 391-55-220, but this motion was
withdrawn in the Post-
hearing Brief of the Association. (See, Association's
Exhibit No. 7 and the Association's
Post-hearing Brief, p.2).
A second procedural issue raised by the Association
also
involved an interpretation of WAC
391-55-220. In withdrawing
one motion, it was unclear whether the
Association intended
to withdraw the second as well, since they
were somewhat
interrelated. As is clear from statements made in the
introductory comments of this report, the
arbitration panel
has rejected the Association's position with
respect to this
matter because the Association presented no
evidence to
demonstrate either that it was unaware of
the City's response
to proposals from the Association or that
the City had taken
any stance in arbitration different from
that taken during
mediation or that taken before the Executive
Director of the
Public Employment Relations Commission. Absent such demon-
strable
prejudice, it is the conclusion of the arbitration panel
that
to prevent one party from presenting its case on the basis
of
a technicality would thwart the purposes of the statute
by denying the party access to an effective
means of dispute
resolution, even though the party asserting
the defense would
not have been hindered in its presentation
of the case to the
panel.
Consequently, there shall not be any summary award
on the issue of discipline, the issue of
overtime having been
resolved by the parties in later
negotiations.
V. V. THE ISSUE OF WAGES
A. Proposals
The
Employer has proposed a wage increase of 1.5% to
take effect on September 1 , 1986 for
lieutenants, captains,
and majors.
The City has proposed for the second and third
years of the parties' agreement that wages
of Association
members be increased by 80% on the increase
in the Consumer
Price Index (CPI-W) for the Seattle-Everett
metropolitan
area, with a minimum increase of 1.5% and a
maximum increase
of 6%.
The
Association has proposed that the employer provide
a wage increase of 10% for each of the first
two years of
the 1986-89 collective bargaining
agreement. For the third
year of the agreement, the Association
proposes that the
arbitration panel award whatever increase is
necessary, up
to 10%, to overcome any remaining wage
disparity and to pre-
serve the purchasing power of the members of
the bargaining
unit.
B. Discussion
The
parties have reached agreement with respect to
inter-city comparisons. Those cities are:
Long
Beach, California
Oakland,
California
Portland, Oregon
Sacramento, California
San Diego, California
San Francisco, California
San Jose, California
The agreement about comparable cities,
however, has not pro-
vided the source of guidance in this dispute
that one might
have anticipated. Obviously, stipulations by the parties do
not relieve the arbitrator of the duty to
consider each of
the statutory criteria. Recognizing this fact, the parties
have submitted evidence with respect to all
the relevant
criteria; and they have disagreed vigorously
with respect to
the appropriate weight that inter-city
comparability data
should receive in their effort to negotiate
an appropriate wage
rate.
The focus of the parties' dispute has been on which statutory
criteria should be the most influential wage
determinants.
The
Employer has stressed the importance of the "cost of
living" criterion as well as local
Consumer Price Index statis-
tics.
It is the belief of the Employer that those elements
should be largely dispositive
of the wage rate determination.
The Association, on the other hand, has
relied heavily on the
actual compensation figures from comparative
cities in an effort
to establish that Seattle police managers
are receiving inade-
quate compensation. As previously indicated, however, the
statutory design has not expressly included
more weight for
one criterion than another, supporting a
conclusion that the
legislature expected an arbitration panel to
balance all
statutory factors and to make no single
criterion dispositive
of the outcome. Analyzing the dispute in this way, it
becomes clear that neither the City nor the
Association has
put forth a realistic salary proposal.
In
general, the Association has presented clear and con-
vincing
evidence to demonstrate that Seattle Police lieutenants,
captains, and majors receive significantly
less compensation
than do their counterparts in the
comparative cities on which
the parties have agreed. Currently a "top step" lieutenant
in Seattle receives less compensation in
base monthly pay
than does a lieutenant in any of the
comparative cities except
for Sacramento. Those data are as follows:
City Monthly
Salary
San
Jose $4,176.00
Long
Beach $4,173.00
Oakland $3,985.00
San
Francisco $3,976.00
San
Diego $3,734.00
Portland $3,724.00
Sacramento $3,398.00
These data suggest that Seattle currently is
below the average
base monthly salary of $3,880.00 by
5.4%. It may even be mis-
leading to place Seattle ahead of Sacramento
in this regard,
since testimony indicated that Sacramento
lieutenants receive
21.34% educational incentive pay in lieu of
higher base salaries.
(See, Association's Exhibit No.20, fn.3, and
transcript, p.
155).
The point is that police lieutenants in the City of
Seattle receive at least 5.4% lower base
monthly salaries, on
aaverage,
than do their counterparts in comparative cities.
(See, Association's Exhibit 31, p. 1).
The
conclusion that City of Seattle police lieutenants
receive less actual compensation for their
services than do
lieutenants in comparable cities receives
confirmation by
studying data with respect to total
compensation. After cor-
recting
an Association error with respect to the average for
net monthly total compensation among the
cities, it is clear
that Seattle lieutenants receive 9.5% less
compensation than
the average received by lieutenants in
comparable cities.
(See, Association's Exhibit No. 31, p.
2). Those data show
the following:
City Net Total Compensation
San
Jose $4,552.00
Long
Beach $4,427.00
Oakland $4,136.00
Sacramento $4,081
.00
Portland $3,824.00
San
Diego $3,785.00
San
Francisco $3,785.00
The data show that Seattle is below the
average net total
compensation by $358.00 or 9.6%.
Nor
is the conclusion affected by comparing total hourly
compensation. Those data show the following:
City Total
Hourly Compensation
Long
Beach $29.13
San
Jose $28.63
Oakland $27.09
Sacramento $26.97
Portland $25.21
San
Diego $25.12
San
Francisco $25.01
On an hourly basis, Seattle police
lieutenants received 9.5%
less than the average wage of $27.74, or
$2.33 below the hourly
average.
In the City of Seattle, police lieutenants receive
less total compensation on a monthly or
hourly basis among the
comparison Cities. It is also clear that police captains and
majors receive significantly less total
compensation per hour
(9.3% and 12.8% less respectively) than is
paid on an average
to captains and majors in comparative
cities. (See, Associ-
ation Exhibit Nos. 32, p.2 and 33,
p.2).
But
is this conclusion significant? The
Employer has
argued that a correct interpretation of the
data reduces the
significance of the conclusion. Management has advanced
several arguments to diminish the
significance of the Asso-
ciation's
"actual compensation" data.
For example, the
Employer has contended that, if salary gains
of police lieu-
tenants in the west coast cities are
compared over a twenty
year period, Seattle lieutenants have
benefited the most.
With a 1986 salary increase of 1.5%, Seattle
lieutenants will
have received an overall percentage increase
in base monthly
salary of 361% as compared with an average
of 302% in com-
parable cities. (See, City's Exhibit No. 133). Those data
show the following pattern:
City Overall
Percentage Increase
From 1966 to 1987
San
Jose 331%
Portland 325%
Oakland 319%
Long
Beach 318%
San
Francisco 286%
Sacramento 278%
San
Diego 264%
These data have assumed a 1.5% wage increase
effective on
September 1, 1986.
Making
a similar argument, the Employer has pointed out
that, between 1967 and 1986, Seattle police
lieutenants gained
53.4% in "real" wages, as compared
with a 15.7% gain among
private sector employes. (See, City's Exhibit No. 140).
(If the CPI-U is used to calculate salary
gains for "groups,"
Seattle lieutenants have gained 45.4%, as
contrasted with
15.7% among private sector employees). (See,
City's Post-
hearing Brief, p. 62). The Employer also has argued that the
salaries of Seattle police lieutenants were
146% higher than
the increase in the Seattle area CPI-W
during approximately
the same period of time. (See, City's Exhibit No. 141).
Finally, the City has observed that private
industry settle-
ments (or at least those covering
the 5000 or more private
sector employes)
have been low, as low as 1.6% in the second
quarter of 1986. (See, City's Exhibit No. 139).
A
review of the comparative data supports a conclusion
that the standard of living of Seattle
police lieutenants has
improved during the past twenty years. They
also suggest that
gains by lieutenants in "real"
compensation have exceeded
those of other employe
groups during the same period of time.
What the data fail to establish, however, is
that the
Employer paid Seattle police lieutenants an
appropriate wage
in 1967. On the contrary, the historical
comparison sup-
ports a different conclusion. The data show the following
pattern:
City 1966-67
San
Francisco $1,029.00
San
Diego $1,027.00
Long
Beach $999.00
San
Jose $968.00
Oakland $950.00
Sacramento $900.00
Portland $877.00
With an average at that time of $964.00, the
data show that
Seattle police lieutenants received 19% less
than an average
base monthly wage for the comparative
cities. In other words,
the data have not dispelled the
Association's contention that
salaries of Seattle police lieutenants
remain disproportion-
ately lower than those of their
counterparts in the stipulated
cities.
The data may only prove that Seattle police lieuten-
ants were not appropriately compensated in
1967 and gradually
have overcome much of the austerity during
the ensuing years.
Even
though Seattle police lieutenants may have accomp-
lished relatively comparable wages
by 1976-79, they began to
experience reductions in their "real" buying power, as compared
with lieutenants in other cities. At the time when the base
salary of "top step" lieutenants
increased on average by 15%
from 1979 to 1986, personnel in
"real" dollars of 1.8%. (See, City's Exhibit No. 133 and
Association's Exhibit No. 18). Those data are as follows:
City Base
Salary "Top Step"
Lieutenant
1979-86
Differential
(1967
Dollars)
These data diminish the impact of the low
settlements reached
in the private sector on a national
level. The City's pro-
posal of a 1.5% increase would do
little to alleviate the
disparity which has been demonstrated by the
Association.
Although
perhaps obvious, it probably should be pointed
out that the arbitrator has focused on
"top step" lieutenants
with twenty years of longevity, rather than
on captains or
majors.
It will be recalled that this was the focus of the
parties, and the Association maintained
without rebuttal that
lieutenants comprise the majority of the
membership in the
bargaining unit. "S P M A longevity averages in excess
of 20 years. Moreover, . . . the lieutenant's salary effec-
tively determines the salaries of
the two higher ranks."
(See, Association's Post-hearing Brief, p.
14). It must also
be noted that, in those cities with
"calendar year" agree-
ments, average salaries provided by
the parties have been
used.
An attempt has been made to
weigh , as relevant,
other factors influencing the meaning of the
economic data,
such as the receipt of holiday or education
incentive pay by
some police lieutenants.
As
previously noted, a "top step" lieutenant in Seattle
receives less or next to less than similar
personnel in dif-
ferent area cities. (See, Association's Exhibit No. 31).
Assuming that, with an educational
incentive, Sacramento pro-
vides monthly compensation of $4,123.00,
Seattle clearly
ranks last.
If one were to adopt the City's wage proposal,
it would affect the comparability pattern
the following way:
City Comparison with
City's Proposal
San
Jose $4,176.00
Long
Beach $4,173.00
Oakland $3,981.00
San
Francisco $3,976.00
San
Diego $3,734.00
Portland $3,724.00
Sacramento $3,398.00 (or
$4,123.00
with
education incentive)
If one were to adopt the Association's wage
proposal, it
would have the following impact on base
monthly salary of "top
step" lientenants
in comparison with comparable cities:
City Comparison with
Association's
Proposal
San
Jose $4,176.00
Long
Beach $4,173.00
Oakland $3,981 .00
San
Francisco $3,976.00
San
Diego $3,734.00
Portland $3,724.00
Sacramento $3,398.00 ($4,123.00
with
education
incentive)
If one were to compute an average salary in
the comparable
cities and exclude the City of Portland, it
would produce a
figure of $3,906.00. If one were to include Sacramento's
education incentive pay while again
excluding Portland, the
average salary would be $4,027.00. The average salary in
all comparison cities is $3,880.00, or
$3,984.00 if one
includes Sacramento's education incentive
pay.
These
data show that the City's proposed wage would give
"top step" Seattle police
lieutenants a wage that would be 4.6%
lower than the average compensation received
by lieutenants in
comparable cities located only in
California. If Sacramento's
salaries include the education incentive pay
received by "top
step" lieutenants with twenty years of
experience, the
differential would increase to 7.8%. If one focuses on the
average salary paid in all comparative
cities, the Employer
has proposed to pay Seattle police
lieutenants 3.9% less than
the average comparable cities, or 6.6% less
if Sacramento's
education incentive pay is included. The Employer has
offered its "top step" lieutenants
in Seattle a wage of
.3% lower than police lieutenants received
in Portland,
Oregon.
The
Association, on the other hand, has proposed a 10%
wage increase. That would produce compensation of $4,050.00
for a "top step" lieutenant. This would mean a Seattle
police lieutenant would receive 3.7% more
compensation than
the average received in California
comparative cities, or
.6% more with the Sacramento education
incentive adjustment.
When the Association's proposal is compared
with the average
received in all comparative cities, Seattle
police lieutenants
would receive 4.4% more compensation than
the average wage,
or 1.7% more with the Sacramento education
incentive adjust-
ment. The Association has proposed that Seattle
lieutenants
receive 8.8% more compensation than is paid
to lieutenants in
Portland.
It
has been most useful to examine data with respect to
total compensation which the parties have
submitted to the
arbitration panel. Of importance has been a comparative
approach to the "hourly wages"
data. The arbitrator has
attempted to make a comparison of the total
hour compensation
for the proposal of each party, excluding
consideration of
the Association's career incentive pay and
tuition reim-
bursement
proposals. Data from the Association's
Exhibit
Nos. 28 and 29 have been used in an effort
to avoid any
premature application of cost-of-living
figures, before those
data have been analyzed in the report. An evaluation of the
data provide the following pattern:
Current City's Association's
Proposal Proposal
Monthly Salary $3,681 .00 $3,736.00 $4,050.00
Medical $116.00 $231 .00 $226.0O
Dental $40.00 $44.00 $44.00
Educational 0 0 0
Longevity 0 0 0
Other 0 0 0
Total Monthly Compensation $3,947.00 $4,011.00 $4,325.00
Minus Pension of 6% Salary $3,726.00 $3,787.00 $4,082.00
Net Hours $1,832 $1,832 $1,832
Total Hourly Compensation $24.41 $24.81 $26.74
Comparing
current rates with those that have been proposed
by the parties, one sees the following
pattern:
City's Association'
s
Cities Current Cities Proposal Cities
Proposal
Long Beach $29.13 Long Beach $29.13 Long Beach $29.13
San Jose 28.63 San
Jose 28.63 San
Jose 28.63
Oakland 27.09 Oakland
27.09 Oakland
27.09
Sacramento 26.97 Sacramento
26.97 Sacramento
26.97
Portland 25.21 Portland
25.21 Seattle 26.76
San Diego 25.12 San
Diego 25.12
San
Diego 25.12
As contrasted with the City's proposed
hourly wage of $24.81
and the Association's rate of $26.74, the
average hourly
wage in comparative cities, excluding
Portland, is $26.99
or $26.74 in all comparative cities. These figures show
that, according to the City's proposal,
Seattle police lieu-
tenants would receive 8.8% less total hour
compensation for
their services than do lieutenants in the
stipulated California
cities.
Seattle lieutenants would receive 7.8% less compen-
sation than the average wage
received in all comparative
cities.
They would receive 1.6% less compensation, if the
City's proposal were adopted, than do police
lieutenants in
Portland, Oregon.
Using
the Association's salary proposal and
excluding its career incentive pay and
tuition reimbursement
proposals, Seattle police lieutenants would
be paid .9% less
than their counterparts in California
comparative cities. They
would receive precisely the hourly wage of
all the comparative
cities without regard to any other
factors. They also would
receive 6.1% more compensation than do
police lieutenants in
Portland, Oregon.
As
indicated earlier in the report, comparability data
are exceedingly important in interest
arbitration. There is
a sense of fairness about such
information. It must also be
recognized that police managers in larger
cities clearly face
responsibilities and work related pressures
not experienced
by managers of smaller police
departments. It would be
imprudent to attempt to determine a fair
wage without giving
substantial consideration to what other
similarly situated
police officers are paid for their
services. As already
made clear, the statute requires that
economic comparisons
be made between employers of similar size.
Yet,
neither comparability data nor the stipulations of
the parties are dispositive
of the issue. The statute has
set forth a number of standards to be
considered, employing
such other factors which are normally or
traditionally taken
into consideration in the determination of
wages. Implicit
in the statute is a legislative recognition
that it would be
too simplistic merely to compare wages paid
in large cities
along the west coast, without acknowledging
that different
economic conditions may prevail among
them. Thus, the legisla-
ture has instructed arbitration
panels to consider factors such
as the cost-of-living or traditional factors
such as the dyna-
mics of the local labor market and
the impact of a "labor area."
The
U.S. Department of Labor, Employment and Training
Administration has defined "labor
area" as follows:
A "labor area" consists of a central city or
cities
and the surrounding
territory within
commuting distance. It is an economically inte-
grated
geographical unit within which
workers
may readily change jobs without changing
their
place of residence. (See,
U.S. Department of
Labor, "Area Trends in Employment and Unemploy-
ment,"
GPO, p. 13 (1975)).
Recognizing that there have been many
definitions of "labor
market," the arbitrator has used the
term with reference to a
particular geographical area within which a
group of employers
and wage earners buy and sell services. It, like the cost-
of-living concept, is not dispositive and cannot be relied on
for unerring accuracy. The concept of "labor market," how-
ever, is still a useful one and provides
another source of
guidance in the determination of wages.
One
reason an analysis of "local labor market" data is
useful is because such comparisons allow the
arbitration
panel to consider salaries of employes who work under the
same state laws, taxing systems, and
relative economic con-
ditions. Additionally, the employer has a legitimate
concern
in paying wages that are sufficiently high
to attract quali-
fied employes,
while maintaining a wage rate that is not
inequitable or exorbitant as viewed by other
city employes
or the general public. It is in a consideration of "local
labor market" data as compared with the
parties' proposals
that it becomes clear that the Association
has sought too
much and the Employer has offered too
little. Even consid-
ering the special nature and risks
of job responsibilities
faced by managers in a large metropolitan
police department,
the conclusion remains unaltered.
It
is essential to give consideration to the "local
labor market" data because of the fact
that an agreement,
such as the one with the
ation, is not an isolated event but
is linked with numerous
other economic forces. It, of course, is important to look
at the "industry" as a whole, as
defined by the comparative
cities about which the parties have
agreed. It is highly
relevant for management to be aware of what
other cities
currently are paying personnel, and such
knowledge should
have considerable influence on the wage the
Employer is going
to pay.
But
a second important connection with economic forces,
one that links this labor agreement with
others in the com-
munity, is a comparison of workers
and employers in the same
local labor market. Employers in the local labor market all
have a standing relationship to one another,
and their rela-
tive position is determined by
their respective wage scales.
Customarily, employers in a local labor
market have attempted
to maintain their relative standing with
respect to one
another and possibly to move up in the
ranking. There is
prestiage to be gained from establishing a reputation
as a
"wage leader" or, at least, being
recognized as having a high
standing in the group. Such prestige can be translated into
the pragmatic advantage of giving one
employer the first
opportunity to hire the best applicants in
the labor market.
For decades, it has been recognized that
there is a fair
amount of stability to be found in local
labor market wage
standings over a long period of time. (See, Reynolds, The
Structure of Labor Markets,
p. 24 (1951)). Hence, it is
appropriate to recognize "local labor
market" data as only
another source of guidance for the
arbitration panel.
In
an effort to clarify the proposals of the parties
within the context of the local labor
market, the arbitrator
has used those data provided by the parties
to compare
Seattle Police lieutenants' base monthly
salaries to
those received in other Washington
communities during
the past two years. "Base monthly salaries" have been
used because the parties did not submit
total compensation
data for Washington cities. Additionally, testimony at the
hearings indicated that police lieutenants
in Tacoma receive
longevity pay of 8% of a patrol officer's
base salary with
twenty years of service. (See, Association's Exhibit No.
16 and Transcript, vol. 2, p. 146). Consequently, conclu-
sions drawn from the data depend on
whether longevity pay is
considered part of a Tacoma lieutenant's
base salary, and
figures reflecting Tacoma's additional pay
have been indicated
in parentheses. The arbitrator did not receive evidence with
respect to what a patrol officer's base
salary would be for
the 1986-87 year. As a result, the 1985-86 figure of $217.00
also has been used to represent a Tacoma
lieutenant's longe-
vity pay in 1986-87. A review of the information shows the
following:
Percentage
Cities 1985-86 1986-87 Increase
Tacoma $3,597.00 $3,601.00 1.5%
(3,814.00) (3,868.00) (1 .4%)
Renton 3,449.00 3,553.00 3%
Bellvue 3,448.00 3,517.00 2%
Mercer Island 3,445.00 3,538.00 3%
Auburn 3,360.00 3,410.00 1.5%
Everett 3,268.00 3,399.00 4%
Kent 3,154.00 3,217.00 2%
Average 3,387.00 3,469.00
(3,418.00) (3,500.00) 2.4%
Seattle 3,681 .00
City's Proposal 3,736.00
Association's Proposal 4,050.00
The
data just summarized in chart form by the arbitrator
show that Association members are relatively
well paid in
comparison with police managers in this
geographic area. In
1985-86, Seattle police lieutenants ranked
at the top of the
local labor market for police
management. Assuming a 1.5%
wage increase in the base salary of Seattle
police lieuten-
ants effective September 1, 1986, this
position of wage
leadership will continue. Lieutenants in Seattle would earn
7.7% more compensation than the average wage
of $3,469.00
received by lieutenants in Renton, Mercer
Island, Bellvue,
Kent, Everett, Auburn, and Tacoma. That amount would be 6.7%
more compensation if Tacoma's longevity pay
were approved.
On average, Seattle police captains would
earn 15.5% more
than captains in the relevant comparative
cities.
(See, City's Exhibit No. 137).
If
the Association's proposed wage of $4,050.00 for "top
step" police lieutenants were adopted,
Seattle police lieu-
tenants would receive 16.7% more
compensation than the aver-
age received by police lieutenants in the
local labor market.
Even adding Tacoma's longevity pay, Seattle
police lieuten-
ants still would receive 15.7% more compensation
than the
average of other relevant police personnel
in Washington.
Other
local economic data have also presented a challenge
to the proposed wage increase of 10%. An effort has been
made by the arbitrator to compare
differentials between
Seattle police lieutenants and selected managerial personnel
in Seattle.
The objective has not been to compare actual
salaries as much as it has been to determine
the impact of
the parties' proposals on customary
differentials between
Seattle police lieutenants and these other
supervisors. The
arbitrator has not received any data for
1986 and 1987, and
the figures for those years (as indicated by
an asterisk)
have been approximated by applying the
average 1987 increase
for local area public agencies of 2.2%, as
indicated by earn-
ings received at the time.
(See, City's Exhibit No. 138).
A
review of the relevant information shows the following
pattern:
Percentage Percentage
Differential Differential
License
& Electrical Seattle for
License for Electr.
Standards Worker Police & Standards Worker
Year Supervisor Supervisor Lieutenant Supervisor Supervisor
1967 $755.00 $807.00 $810.00 7.3% 3.7%
1968 850.00 890.O0 945.00 11.2% 6.2%
1969 893.00 935.00 1,002.00 12.2% 7.2%
1970 954.00 1,011.00 1,137.00 19.2% 12.5%
1971 997.00 1,057.00 1,276.00 28.0% 20.7%
1972 1,031.00 1,094.00 1,320.00 28.0% 20.7%
1972-73 1,089.00 1,154.00 1,391.00 27.7% 20.5%
1973-74 1,149.00 1,370.00 1,485.00 29.2% 8.4%
1974-75 1,277.00 1,507.00 1,674.00 31.1% 11.1%
1975-76 1,432.00 1,818.00 1,877.00 31.1% 3.2%
1976-77 1,508.00 1,911.00 2,023.00 34.2% 5.9%
1977-78 1,641.00 2,049.00 2,201.00 34.1% 7.4%
1978-79 1,766.00 2,237.00 2,368.00 34.1% 5.9%
1979-80 1,946.00 2,470.00 2,610.00 34.1% 5.7%
1980-81 2,355.00 2,819.00 2,923.00 24.1% 1.1%
1981-82 2,550.00 3,126.00 3,166.00 24.2% 1 .3%
1982-83 2,660.00 3,236.00 3,372.00 26.8% 4.2%
1983-84 2,743.00 3,236.00 3,453.00 25.9% 6.7%
1984-85 2,825.00 3,383.00 3,619.00 28.1% 7.0%
1985-86 2,867.00 3,483.00 3,681.00 28.4% 5.7%
A
number of conclusions can be drawn from these data.
First, it is recognized that the
qualifications would have an
impact on salaries paid, but some weight can
be attached to
patterns that have emerged over a period of
twenty years.
The data show that, during the past twenty
years, Seattle
police lieutenants have earned on the
average 26% more than
licensed and standards supervisors in base
monthly wages.
While the City's proposal slightly exceeds
this average at
27.5%, the Association's proposal would
increase the differ-
ential to 38.2%. Seattle police lieutenants have earned on
the average during this time period 8.3%
more than electrical
worker supervisors in Seattle. The Employer's first year
proposal would decrease this differential to
4.9%, while the
Association's proposal would increase the
differential to
1 3.8%.
Another
employment factor normally and traditionally
taken into consideration in the
determination of wages is the
internal wage structure of an organization. It is appropriate
to consider a larger complex of rates within
the police
department, recognizing that this wage
structure does not
necessarily operate as a unit. The point of the inquiry is
not to make an issue of any individual rate
so much as it is
to focus on any job clusters that may be
pattern makers and
also to be aware of any wage contours that
may help clarify
an appropriate wage rate for members of this
bargaining unit.
An effort has been made to compare base
monthly salary differ-
entials
between ranks within the Seattle police department
in 1985 with those differentials as they
would exist under
each parties' proposal.
Ms.
Dwyer, Labor Relations Analyst, testified that the
chief of police as well as the assistant
chief of police
normally received the same wage increase as
that bargained
for nonrepresented
bargaining unit groups. The amount on
which the parties agreed effective September
1, 1986 was .5%.
(See, Transcript, vol. V, pp.
1055-1056). In other words,
the 1986 figures which have been used for
the chief of police
and the assistant chief of police have
assumed a .5% increase.
The sergeant's salary figure has included a
maximum longevity
payment (8% of a "top step" police
officer's pay). (See,
City's Exhibit No. 185). The data are as follows:
9-1-85 City's Proposal Ass'n's
Proposal
Rank
Salary Differential Salary Differential Salary Differential
Chief of
Police $5,707.00 9.2% $5,736.00 9.2 $5,746.00 9.2%
Assistant
Chief of
Police 5,225.00 7.4% 5,251.00 6.3% 5,251.00 [ -2% ]
Major 4,867.00 15% 4,940.00 15% 5,357.00 15%
Captain 4,233.00 15% 4,296.00 15% 4,658.00 15%
Lieutenant 3,681.00 12.5% 3,736.00 12.5% 4,050 22%
Sergeant 3,372.00 4,301.00 3,391.00
These data show that the Association's
proposal of a 10% salary
increase would nearly double the percentage
differential between
the ranks of lieutenant and sergeant. Without maximum longevity
pay included in a sergeant's salary,
sergeants' pay would be
$3,905.00.
(See, City's Exhibit No. 145).
The differential
between the two ranks at that rate would
increase to 30.4%.
Between
the ranks of major and assistant chief of police,
the differential would entirely
disappear. Majors actually
would receive 2% more compensation than an
assistant police
chief.
Such an anomaly in the internal wage structure does not
provide a basis for withholding an
appropriate wage increase,
but the data would simply provide yet
another source of guidance
and highlight the need of an organization to
maintain a reason-
ably rational wage structure between ranks
within the department.
The
Runzheimer Report. The comparative data with respect
to west coast cities generally have shown
that the Employer's
wage proposal in this case will not place
members of the bargain-
ing unit in a favorable
position. On the other hand, the Asso-
ciation's
proposal is overly optimistic when tested against
economic forces in the local labor
market. Although these
comparative data are instructive, they are
still incomplete.
Another factor that deserves consideration
is information with
respect to cost-of-living.
As
a preliminary matter, the parties have argued vigorously
about the use to which the arbitration panel
legitimately may put
cost-of-living data. The Association has contended the Consumer
Price Index is primarily a vertical measure
of purchasing power.
That is, it measures inflation for the time
in one locale. In
the Association's view, the most legitimate
use for "cost-of-living"
data is to determine the amount of salary
increase needed to
maintain the purchasing power of bargaining
unit members during
the duration of a negotiated agreement. It is the belief of the
Association that such data are misused for
purposes of making
inter-city wage comparisons. (See, Association's Post-hearing
Brief, p. 21).
On
the other hand, the City has argued that a "cost-of-
living" adjustment must be a factor in
the wage determination
in order to attain salaries that are truly
comparable to those
received in the stipulated comparative
cities. The City has
argued with great determination that the
Consumer Price Index
should constitute the single most important
factor in determining
salaries of police management
personnel. The neutral arbitrator
has concluded that the most reasonable position does not lie
with either of these points of view.
As
previously indicated, the legislature has deemed it
appropriate to consider
"cost-of-living" information as a factor
in wage determinations but has not mandated
what weight is to
be allocated to this statutory
standard. (See, RCW 41.56.460(d)).
It is more appropriate to view Consumer
Price Index data as
measuring purchasing power within an area,
rather than changes
in the actual cost of living. As one author has stated:
The CPI never has measured changes in the
"cost-of-
living." Neither has any other index. From its begin-
ning,
the design of the Consumer Price Index has been
a fixed-rate market basket, that is, an
index which
has measured changes in prices of a few
selected and
unchanging quantity of goods and
services. (See,
Ferguson, Cost of Living Adjustments,
p. 33 (1976)).
The
fact that inflation is low in a particular geographic
area does not itself respond to the problem
of an individual
who has been paid at an inappropriate
rate. There is no
logical link between the argument that there
exists a low
CPI and the conclusion that the CPI should
be the single most
important factor in the arbitration panel's
determination.
At
the same time, the Consumer Price Index clearly is a
useful tool, although an imprecise one, in
evaluating inter-
city comparisons. For example, if wages in Seattle and
San Francisco have been approximately the
same since 1967
but inflation was drastically higher in San
Francisco than
in Seattle during the ensuing years,
logically one can expect
that wages in San Francisco would have to
increase faster
than those in Seattle in order for wage
parity to exist. It
is reasonable to conclude that, if dollars
have greater pur-
chasing power in one city than in another,
this fact ought
to be taken into account in determining an
appropriate wage.
Accordingly, the CPI data may be used to
indicate generally
how significant are the disparities in
actual compensation
between comparable cities. Nor has RCW 41.56.450 or 41.56.460
restricted the arbitration panel's use of
the economic data
in the way suggested by the
Association. The CPI and other
inter-city "cost-of-living"
comparisons could have relevance
and have been used in determining the
appropriate wage to be
paid members of the bargaining unit. It is important to
stress that the statutory criteria are not
completely separable,
and no one factor can be relied on
exclusively without some
recognition of the impact on other statutory
criteria.
The
parties have argued extensively about the merits of
the inter-city "cost-of-living" comparison that
the Employer
presented in support of its position. According to the
Employer, Seattle police managers are able
to maintain an
appropriate standard of living with approximately
6.8% less
cost than they could were they to live in
one of the compara-
tive cities. (See, Transcript, vol. IV, p. 950). Conse-
quently,
the Employer has argued that this cost-of-living
differential should be computed into actual
compensation
data in order to determine when true wage
parity among the
comparative cities has been attained. (See, City's Exhibit
Nos. 130 and 131; Transcript, vol. IV, pp.
50-52).
The
City's conclusion that Seattle's cost-of-living
falls below that of Portland and the
California cities by
approximately 7% has been based largely on
the Runzheimer
Report.
(See, City's Exhibit Nos. 109 and 127; Transcript,
vol. IV, pp. 950-52). As a consequence, the parties spent a
substantial amount of time debating the
merits of the Report.
They expressed strong disagreements about
the worth and intel-
lectual
integrity of the Runzheimer Report and differed
vigorously with respect to its usefulness as
a means for
determining cost-of-living differences in
the comparative
cities.
The concerns focused primarily on three issues,
namely, (1 )
is the Runzheimer Report admissible evidence?
(2) how accurate is the City's 7%
cost-of-living differential?
and (3) has the City inappropriately applied
its cost-of-living
data to the wage proposal for members of the
bargaining unit?
At
the hearing, the arbitrator indicated that, if the
panel decided the Runzheimer
Report was hearsay evidence, it
would receive no weight. (See, Transcript, vol. IV, pp.
928-29).
From an evidentiary standpoint, however, the
Runzheimer
Report clearly is admissible for consideration by
the arbitration panel. RCW 41.56.450 states:
The rules of evidence prevailing in judicial
pro-
ceedings
may be considered, but are not binding,
and any oral testimony or documentary evidence
or other data deemed relevant by the
chairman
of
the arbitration panel may
be received in
evidence.
It is recognized that the Runzheimer Report is not without
problems with respect to hearsay evidence,
but the arbitrator
has recognized that problem in determining
the appropriate
weight to give the information. As one court has observed:
Although the rules of evidence exclude
hearsay
in a trial at law, the exclusion is not
because
hearsay
is entirely without probative
value.
It has been said with some justice that charac-
terization
of evidence as hearsay is in reality
simply a criticism of the weight that should
be given to it. In an arbitration the parties
have
submitted the matter
to persons whose
judgment they trust, and it is for the arbitra-
tors
to determine the weight and credibility
of evidence presented to them without restric-
tions
as to the rules of admissibility which
would apply in a court of law. (See,
Honeywell
Regulator Company, 54
LRRM 2660,
2661 (E.D. Pa. 1963)).
Moreover,
the Runzheimer Report clearly falls within a
recognized exception to the general rule
against admission of
hearsay evidence. Rule 703 of the Rules of Evidence for
the State of
and data reasonably relied on by experts in
a particular
field to form opinions and inferences. The Employer
laid an
adequate foundation to establish that Mr.
Richard Schneider,
Vice-president of Living Cost Services for Runzheimer and
Company, is an expert in the field of cost-of-living analysis.
(See, Transcript, vol. III, pp.
643-52). Mr. Schneider based
his testimony on data and information which
he routinely
uses in measuring "cost-of-living"
differentials between
cities.
Cost-of-living factors unquestionably are relevant
in this arbitration, and the only
substantial question is to
what extent.
Because the Runzheimer Report would be
admitted
as evidence in a court of law in the State
of Washington, the
neutral arbitrator has concluded that the Runzheimer Report
is admissible as evidence which the
arbitration panel may
consider in its determination.
A
far more difficult question involves the appropriate
weight to be accorded the Runzheimer Report.
In other words,
the data used by the Runzheimer
Company may be generally reli-
able.
"Cost-of-living" analysis is not merely a computa-
tional exercise. Such an analysis requires that facts be
manipulated in order to be able to draw
useful inferences.
Accordingly, the probative value of the
report is subject to
challenge on at least two grounds, namely,
(1 ) whether
Runzheimer's
methodology is theoretically sound; and (2)
whether Runzheimer's
data collection techniques are entirely
reliable.
The
Employer has argued that the Runzheimer Report is an
uncommonly accurate source of
"cost-of-living" data because
it has been tailored specifically to the
lifestyles and cir-
cumstances
of Seattle Police management personnel.
In other
words, management maintains that Runzheimer, in comparing
members of the bargaining unit to their
counterparts in the
comparative cities, took into account what
individual income
levels were, whether individuals rented or
owned homes, the
location of their homes, and what
constituted the appropriate
"market basket" of goods and
services for an individual making
$44,000.00 a year. Additionally, the Report examined auto-
mobile and home maintenance costs, taxes,
and other factors
relevant to developing a "standard of
living prototype" for
members of the bargaining unit. (See, Transcript, vol. III,
pp. 667-673). The "Runzheimer"
method, then, called for
representatives of the company to determine
what it cost in
January, 1987 to maintain this standard of
living in each
city and concluded that the average cost of
living in Seattle
is approximately 7% lower than in the
comparative cities
studied by the parties. (See, City's Exhibit No. 7).
In response, the Association returned the
volleys over
the net and added a few serves of its
own. The Association
persistently challenged the theoretical
basis of the Runzheimer
Report in several ways. Of great concern to the Association
was the fact that it believed home purchase
costs accounted
for a substantial portion of the higher cost
of living that
the Runzheimer
Report attributed to the comparative cities.
According to the Association, the Runzheimer Report considered
higher purchase prices of homes in
California or Portland
without taking into account the equity
element of home ownership.
Thus, the Association maintains that, for
example, the Runzheimer
Report ignored the fact that a police
lieutenant in San Jose
allegedly is wealthier in terms of his or
her home investment
at the time of retirement than is a Seattle
police lieutenant.
The Association pointed out that, in 1983,
the Bureau of Labor
Statistics changed its measure of housing
costs to correct
exactly this problem.
In
the Association's view, the Runzheimer Report failed
appropriately to take into account
"shelter costs" in analy-
zing "cost-of-living"
differentials, and the failure consti-
tuted a serious flaw in the
study. It is the contention of
the Association that, when home investment
costs are separated
from "shelter costs," even the Runzheimer Report indicates
that the net annual living cost in Seattle
is not appreciably
(about 1%) higher than that in other
cities. (See, Association
Exhibit Nos. 194 and 195; Transcript, vol.
VI, pp. 1318-1326).
The Association, however, maintained that no weight at all
should be accorded the data.
Moreover,
the Association has argued the Runzheimer
Report assumes that a police lieutenant
would buy the same
type of house and lot in Seattle that he
would purchase were
he to transfer to San Francisco. It is the belief of the
Association that such an individual would
not be able to buy
as large a house and lot in San Francisco as
had been left
in Seattle.
In effect, the individual allegedly would trade
the large house for other alleged benefits
in lifestyle that
San Francisco could offer. But, the Association has concluded
that the comparisons of the "standard
house of police manage-
ment personnel" in the Runzheimer Report have ignored the
economic phenomenon of substitution, namely,
that one resource
will be substituted for another whenever
substitution results
in a lowering of costs.
The
Association was thorough in demonstrating that the
Runzheimer Report is not without its problems. It, neverthe-
less, is the belief of the neutral
arbitrator that none of
these objections completely undermines the
validity of the
Runzheimer
Report as a source of guidance in helping to under-
stand differences in inter-city costs of
living. First,
Mr. Vogler's
testimony reasonably explained why the Bureau
of Labor Statistics changed its procedures
with respect to
the Consumer Price Index. He viewed the Consumer Price Index
as a vertical measure of prices in one area
for the time. In
assuming that people would buy a house every
year, computa-
tions in the Consumer Price Index
overstated the true rate of
inflation.
Accordingly, a "rental" equivalency method alleg-
edly measures with greater
accuracy shelter costs on an annual
basis.
This same problem allegedly does not exist in the
Runzheimer
Report because it presents a true inter-city cost-
of-living comparison, that is, a horizontal
measure of cost
of living in several locations at a given
point in time.
(See, Transcript, vol. VI, p. 1487). For example, the fact
that a police lieutenant living in
amassed more equity at retirement than has a
lieutenant in
must pay more to maintain a certain standard
of living. The
Association's argument appeared to assume
that such an indi-
vidual would retire in an area of
lower housing costs or
obtain a "home equity" loan in order
to be able to consume his or
her alleged greater wealth. There, however, was no showing
that such assumptions are logically
necessary.
Similarly,
the fact that an individual is unable to pay
for as large a house in
she could purchase in
not undermine, the supposition that it costs
more to live a
particular lifestyle in
Further, even if the panel were to accept
the Association's
contention that a police manager in
wealthier than one in
relationship between how much wealth an
individual accumu-
lates over a lifetime and how much
it costs that individual
to maintain a certain standard of
living. Finally, the
"fixed market basket" approach
used by Runzheimer personnel
is similar to that used by the Bureau of
Labor Statistics
in computing its Urban Family Budget, as
well as by the
American Chamber of Commerce Researchers'
Association, and
by the Associates for International
Research, Inc. (See,
Transcript, vol. III, pp. 431-434, and
City's Exhibit Nos.
80A and 80B). It is a traditional method of data gathering
and one of the few available methods for
making inter-city
"cost-of-living" comparisons.
On
the other hand, the Association's other objections
to the Runzheimer
Report cannot be answered so easily. At
the arbitration hearing, the Association
pointed out that
the Employer had refused its request to
review all written
and oral communications between the City and
personnel of
the Runzheimer
Company, as well as any earlier versions of
drafts of the Report, and all mathematical
formulae and
factual data used to prepare the
report. (See, Association's
Exhibit No. 114 and Transcript, vol. IV, p.
862). The
Association contended that the Employer's
refusal to provide
the information limited the Association's
ability to cross-
examine witnesses and adequately to prepare
its case with
respect to the Report. (See, Transcript, vol. IV, p. 863).
The Employer maintained that the
Association's requests
were made on unreasonably short notice and
lacked sufficient
specificity.
The
arbitrator has concluded that the Employer complied
with the Association's request to the extent
that it was able.
(See, City's Exhibit Nos. 112 and 113, and
Association's Exhibit
Nos. 114 and 115). The fact remains, however, that much of the
data and formulae used to prepare the Runzheimer Report was
unavailable to the Association, either
because the Runzheimer
Company characterized the information as
"proprietary, or because
some of the data were inherently historical
in nature. (See, Tran-
script, vol. IV, p. 806). The Association
received considerable
latitude through the process of
cross-examination to bring
to light serious methodological flaws in the
study.
In
fact, the Association established several difficulties
with the Report. For example, underlying data with respect
to "
compare the price of a 2000 square foot
Seattle home with a
2000 square foot home in comparative cities
either had been
destroyed or, otherwise, were
unavailable. (See, Transcript,
vol. IV, pp. 86-87). Likewise, the Association was unable to
test the evidentiary soundness of the ten
comparable
homes chosen for the study because the
actual homes compared
were not known. There were numerous questions which the
Association would like to have answered with
respect to this
matter.
For example, were the homes Runzheimer
personnel
chose located in appropriate
neighborhoods? Were all the
homes in the same condition? Were they more or less than
2000 square feet, and if so, by how
much? Because the speci-
fic sources of information used
for the Runzheimer Report
were not identified, the answers to these
and other questions
were impossible to obtain. (See, Transcript, vol. IV, pp.
817-830).
The
need for such information was made more crucial by
the fact that home ownership constituted a
prime component of
the Report.
Mr. Schneider failed to convince the neutral arbi-
trator that the statistical
processes used by Runzheimer
necessarily would have weeded out of the
study any inappropri-
ate comparisons. His conviction provided insufficient
assurance that conclusions drawn by the Report
are completely
accurate.
(See, Transcript, vol. IV, pp. 819-820).
As
a result of such uncertainties, the Runzheimer Report
has been used only as another source of
guidance; and the
arbitrator has not relied exclusively on the
conclusions of
the Runzheimer
Report as a precise measure of cost-of-living
differences between
the same time, the Report has not been
discounted entirely.
As the evidence submitted by the parties
made clear, the
Runzheimer
Report was not the only evidence showing that the
cost of living in comparative cities is
higher than it is in
Data
from the American Chamber of Commerce Researchers
Association showed that the cost-of-living
in
the second quarter of 1986 was 3.6% lower
than that of com-
parative
cities. (See, City's Exhibit No.
80(B)). Likewise,
data from the Associates for International
Research, Inc.
indicated that, for a before tax income of
$40,000,
cost of living was 15.2% lower than that of
Transcript, vol. III, p. 87). Updated from 1981, the Bureau
of Labor Statistics' higher Urban Family
Budget showed a 9.7%
differential in cost of living between
parative
cities of
data from the American Chamber of Commerce
Researchers'
Association, Coldwell Banker Residential
Group, Inc., a 1980
Bureau of the Census report, and a report by
the Federal Home
Loan Bank Board for the third quarter of
1986, there was an
indication that home costs in Seattle ranged
from 17% to 48%
less to buy than in some of the comparative
cities. (See,
City's Exhibit Nos. 84, 85, and 86). Additionally, there was
unrebutted
evidence that the 1985-86 Consumer Price Index for
Seattle was .3% as contrasted with 2.1% in
comparative cities
and that
fewer points than the average in those other
relevant west
coast cities from 1967 to 1985. (See, City's Exhibit Nos.
70, 71, and 72). While these data were of varying degrees
of usefulness and reliability, they served
as an indicator
that costs of living in comparative cities
are higher than in
The
Knowles Theory. Through the
testimony of Professor
David Knowles, Associate Professor at
Association advanced a different theory with
respect to how
the cost of living should be measured. The Association argued
that a higher cost of living escalates
wages, making inter-
city wage differences a proxy for inter-city
cost-of-living
differences.
If costs of living are higher in the comparative
cities than in
cross-industry area wage surveys should
reveal the fact that
workers in the comparative cities received
more compensation
than do their counterparts in
vol. VI, pp. 1332-1333).
The
Association argued, however, that the facts did
not reveal such wage differences. When the Bureau of Labor
Statistics issued weekly earnings across
industries from
July, 1986,
than workers in comparative cities. (See, Association's
Exhibit Nos. 196 and 197; Transcript, vol.
VI, pp. 1337-1341).
City government payroll data from the Bureau
of Labor Statis-
tics from 1984 showed that city employes in comparative
cities received only 1.3% more compensation
than did their
Association's Exhibit No. 198). Moreover, the per capita
money income in the comparative cities, on
the average, was
10.4% less than that in Seattle. (See, Association's Exhibit
No. 109).
Accordingly, the Association has argued that
Seattle is at least as expensive a city in
which to live as
any of the comparative locations.
These
data, however, failed to be persuasive. Occupa-
tions Dr. Knowles chose to study
from the BLS area wage
surveys did not constitute a true
cross-section of wage
earners but, rather, focused on clerical,
technical, or
mechanical professions. Thus, it is possible that the wage
figure averages on which Dr. Knowles based
his comparisons
were skewed.
The point is that the Association failed to
establish the relevance of such salaries to
compensation paid
management personnel, except as a general
economic force
confronting the parties.
The
city government payroll data relied on by the Asso-
ciation
were somewhat dated (October, 1984) and
failed to
take into account the differences in
services offered by the
various cities. (See, Transcript, vol. VI, p. 1422). Finally,
per capita money income comparisons may take
into account
income unrelated to wages without
considering differences in
occupational structures within a particular
city. (See,
Transcript, vol. VI, pp. 1424-1425). As a result, less confi-
dence has been placed in
conclusions based on these data.
The
Association has argued that none of the indices of
inter-city cost-of-living differentials
introduced into
evidence by the City may be relied on by the
arbitration
panel.
According to the Association, each must be considered
unreliable because of flawed data collection
practices, lack
of availability of underlying data, or
because the City
failed to produce witnesses capable of
providing an adequate
foundation for the studies. It should be observed, however,
that independent and generally disinterested
organizations
whose purpose is to analyze
"cost-of-living" differences on
a national basis conducted many of the
studies cited by the
Employer.
Each may be subject to criticism with respect to
methodology or data collection
processes. Even Bureau of
Labor Statistics studies, on which the
Association relied for
its own cost-of-living analysis, are
susceptible to the criti-
cism that the underlying data
cannot be completely validated.
Yet, the arbitration panel has been
unwilling to ignore
generally consistent conclusions reached in
the variety of
independent studies. To allow any flaw in a study to eliminate
its evidentiary usefulness would remove much
helpful informa-
tion from the purview of the
arbitration panel and also would
call into question the legitimate statutory
criteria enacted
by the legislature. As Arvid Anderson,
president of the
National Academy of Arbitrators, has pointed
out, "lawyers
are very skillful at raising objections as
to the admissi-
bility or to the relevance of
particular data, however, in
interest arbitration what is really
important is the persua-
siveness
and relevance of what is presented."
(See, Anderson,
"Public Sector Interest Arbitration
Lessons from Recent
Experience," Address to the Society of
Professionals in
Dispute Resolution in Boston, Massachusetts,
October, 1985).
On
the other hand, the arbitrator has not relied on
the studies in a rigid or literalistic way
as a means of
demonstrating a mathematically precise
differential in costs
of living between
differing conclusions in the studies cited
by the parties
amply demonstrate that
"cost-of-living" analysis is at best
an imprecise science. Such data simply cannot be used as
an inflexible formula to compute wage parity
in "real" dol-
lars as the Employer has
suggested. Rather, the sum total
of the information has served to inform the
arbitration
panel that the cost of living in comparative
cities is,
within a general range, higher in
comparative locations than
in
the arbitration panel to conclude that wage
disparities
between
are not so great as some have argued, nor,
on the other hand,
insignificant.
A
Wage Increase of Four Percent: The
"cost-of-
living" factor, then, is only one of several factors set
forth in the legislation. It is the task of the arbitration
panel to evaluate conclusions that should be
drawn from an
amalgamation of these criteria and to make a
wage determina-
tion that is reasonable within the
context of these statutory
factors.
A salary increase of 4% comes as close as possible
to fulfilling this goal. Pursuant to this increase, the base
monthly salaries of police lieutenants,
captains, and majors
would be $3,828.00, $4,402.00, and
$5,062.00, respectively.
An
effort has been made to illustrate the impact of this
increase.
In terms of base monthly salary,
personnel would rank as follows among the
stipulated compara-
tive cities:
Lieutenants
Cities Wage
Seattle $3,828.00
($4,123.00
with education incen-
tive pay)
Captains
Majors
Seattle $5,062.00
A
wage increase of 4% would place
tenants 2% below the average base monthly
wage of $3,906.00
in
incentive pay is included in the
calculation) . In comparison
with all of the comparative cities,
receive 1.4% less compensation than the
average of $3,880.00
(or 4.5% less if
They will receive 2.8% more compensation in
base monthly
wages than
wages compared with the stipulated
will receive 3.9% below the average base
monthly wage of
$4,574.00 for all the comparative
cities. Not all the com-
parative
cities employ majors whose rank is comparable to
that of a "major " in
pp. 153 and 163). The data for those which do so indicate
that
majors in comparative cities with an actual
dollar differen-
tial of $381 .00.
An
effort also has been made to compare the impact on
total
hourly compensation of a 4% wage
increase, using
the same method of computation as previously
described
earlier in the report with respect to total
hourly compensation.
This information has been especially useful
because it accounts
for differences in types of pay received by
police management
personnell
such as education incentive or holiday pay.
The
data show the following pattern:
Cities Lieutenants
Cities Captains
Cities Majors
Seattle $32.97
These
data show that, with a wage increase of 4%,
average hourly wage of $26.99 among
comparative cities in
5.4% less than the average hourly wage.
will receive .6% more total compensation per
hour than
hourly compensation received by captains in
and 5.2% less than that received by captains
in all the com-
parative
cities.
the average received by majors in other
comparative cities.
These
data make clear that members of this bargaining
unit will receive less actual compensation
than the average
received in other west coast cities with
which
been compared, although the actual dollar
differentials are
not overwhelming. For a number of reasons, the arbitration
panel believes
cities reflects a reasonable way of
balancing the statutory
criteria.
First, as the data have made clear, there is an
overall higher cost of living to be found in
comparative
cities than there is in
as the basis of one's conclusion, the
differential can range
from 3.1% to 9.7%. (See, City's Exhibit Nos. 70, 72, 80-86,
and 130-131 ).
Another
point to highlight is the fact that the data
consistently show averages of salaries among
the comparative
cities to be higher when
consideration. Thus, while concededly based on comparisons
of wages received by police management
personnel in the
stipulated cities, even the Association
's "wage proxy"
method of measuring cost of living would
suggest that
cities experience a higher cost of living
than do the two
largest cities in the pacific
Northwest. This assumption has
been supported by data from the Association
showing that, among
the comparison cities between 1976 and 1986,
only portland had
a lower CPI than did
No. 17).
For this reason,
have been of more than casual interest. A 4% salary increase
would place the salaries of
above those similarly situated employes in
It
is also important to recognize the impact of a 4% wage
increase on the place of Seattle police
lieutenants in the
local labor market,a
factor which must be given its due weight.
Within that context, salaries received by
members of the bar-
gaining unit will be high, but not unreasonably
so. Compared
with the average base monthly salaries of
police lieutenants
in the Tacoma, Renton, Bellvue,
Mercer Island, Auburn, Everett,
and Kent, Seattle lieutenants will receive
10.3% more compensation
(9.4%, when Tacoma's longevity pay is included
as part of a
Tacoma lieutenant's base monthly pay). Seattle captains will
receive 16.3% more compensation than the
average of their counter-
parts in
Nor
can the impact on the internal wage structure be
ignored.
As will be recalled,
have been paid an average of 26% more
compensation than the
License and Standards Supervisor for the
last twenty years.
A 4% raise will increase this differential
to 30.6%. Lieu-
tenants will receive 7.5% more compensation
than Electrical
Worker supervisors, which is slightly below
the twenty year
average of 8.3%.
There
also is a need for the arbitration panel to be
sensitive to the Employer's need to maintain
sensible differ-
entials
between ranks within the department. A
4% wage
increase will give members of this
bargaining unit an equi-
table wage without distorting internal
differentials. Police
lieutenants will receive 23.3% more
compensation in base
monthly wages than will police
sergeants. (See, City's
Exhibit No. 145). If maximum longevity is included in the
calculation for a sergeant's pay, the
differential will be
only 15.3%.
Assuming the Assistant Chief of Police received
a .5% wage increase, this individual would
be paid only 3.7%
more compensation than a police major. As previously suggested,
however, this issue cannot be dispositive. With
respect to
the Chief and Assistant Chief of Police, the
Employer has the
power to structure the salary differentials
as it deems it
prudent.
The
Association has raised a number of arguments to sup-
port a much higher wage increase that have
not been persuasive.
For example, the Association has argued
that, since 1979,
historical data show a steady erosion in the
relative economic
position of wages in this bargaining unit as
compared with
the stipulated cities. That is, among the comparisons, Seattle
was the wage leader in 1979 but gradually
lost ground until,
in 1986, it ranked almost last. (See, Association's Exhibit
No. 14).
It is a forceful argument when a bargaining unit
can clearly demonstrate that it has been a
wage leader over
a period of years. Because a city's reputation as a wage
leader may attract the highest quality
personnel, its status
in this respect benefits not only bargaining
unit members but
also the Employer and the public as
well. The Association,
however, has not explicitly shown such a
history as a wage
leader with respect to
that
the past twenty years. The data reveal the following pattern:
Cities 1966-67
Cities 1975-76
Cities 1978-79
Cities 1981-82
Seattle $3,166.00
Cities 1985-86
Seattle $3,681.00
The data simply do not support a conclusion
that
been a consistent wage leader among west
coast cities with
respect to base monthly salaries for police
lieutenants. The
fact that
the city as a wage leader with respect to
police management
personnel.
The point is, of course, that comparability data
cannot play as important a role in wage
determinations for a
wage leader, although it is presumed to be
significant.
The
Association has also argued that the Employer has the
ability to pay members of the bargaining
unit as much as a 30% in-
crease.
The City has not contested its ability to pay, and
evidence submitted to the arbitration panel
shows that the
economic tenor of the Employer has improved
since the early
1980s.
Those improved conditions clearly warrant a 4% wage
increase.
Members of this bargaining unit, like other employes,
should expect to share in the City's economic
recovery.
On
the other hand, the objective of an interest arbitra-
tion is not to determine the
extreme limits of what an employer
might be able to afford, but rather to
determine an equitable
and fair wage rate based on objective
data. The City was
persuasive in its contention that the
Association's proposed
total compensation package is too
costly. According to the
City's calculations and assuming a 10% per
year wage increase,
the Association's complete proposal over the
next three years
would provide each bargaining unit member
with $52,534.00
more than he or she currently receives. At the end of the
three years, members of this bargaining unit
would have re-
ceived about twice as much in
additional compensation as the
City currently expends for those individuals
in one year.
(See, City's Exhibit No. 156). Consequently a number of
interests must be balanced in making this
wage determination,
among them enabling the Employer to maintain
its economic
recovery, making progress on other priorities,
and remaining
cautious during a time of unpredictable
economic forces.
Nor
have the City's arguments in support of a 1.5% wage
increase been persuasive. The City has argued that, within
the context of the local labor market,
members of this bar-
gaining unit are already extremely well
paid. According to
the Employer, salary increases among local
public agencies
averaged approximately 2% in 1986 and
1987. The
Police Officers Guild negotiated a 1.5%
salary increase,
effective September 1, 1986. (See, Transcript, vol. V,
p. 1167).
Local 17 of the Joint Crafts Council and the Inter-
national Federation of Professional and
Technical Engineers
negotiated a first year wage increase
averaging approximately
1%, with increases based on the
second and third years. (See, Transcript, vol. V, pp. 1175-78).
The
arbitration panel recognizes that there is a differen-
tial that favors police personnel
when they are compared
with certain other City supervisors. In addition to the
historic pattern, some weight also must be
given to the fact
that services performed by police managers
are both indispen-
sable and unusually hazardous. To the extent that their
salaries exceed those received by some other
city supervisors
and managers, the higher pay simply
recognizes the special
nature of the work performed by members of
the bargaining
unit.
Later
Years of the Agreement: Ideally,
the comparable
salary levels achieved by members of the
bargaining unit in
1986 should be preserved in the second and
third years of the
parties
collective bargaining agreement.
The Association
has submitted data with respect to 1987
negotiated settle-
ment with police management
personnel in six of the seven
stipulated cities. According to the affidavit of Mr. Gerald
Taylor, immediate past president of the
Association, total
compensation increases among comparative
cities of
have averaged 5.4%. Salary increases among the same cities
have averaged 4.8%. (See, Association's post-hearing Brief,
p. 19).
The
arbitrators have received no data with respect to
the increase in total compensation received
by Portland
police management personnel. Portland, however, appears to
have received a salary increase of 2% in
1986-87. (See,
Association's Exhibit No. 20, fn. 2). When Portland's increase
is included in the computation, the average
salary increase
among all the stipulated cities is 4.4% Accordingly, it is
reasonable to award members of the
bargaining unit a second
year salary increase of 4.4%, with an aim of
maintaining
their close to average position among the
stipulated cities.
Obviously,
there has been no similar information avail-
able for the contract year beginning
light of the fact that those agreements are
yet to be nego-
tiated, the City's proposal to link
the third year salary
increase to the CPI index is a rational
one. This method of
wage determination insures that members of
the bargaining
unit will not lose ground as a result of
inflation. Addi-
tionally,
by providing a "floor and a
"ceiling," neither
party will suffer greatly from an
unpredictably low or high
rate of inflation from January to June of
1988.
The
City's salary proposal for the third year of the
parties' agreement, however, should be
modified in two
respects.
First, the City has proposed that the third year
wage increase should equal 80% of the
Seattle-Tacoma area
CPI-W.
The Employer, however, has conceded that in its
settlements with the Joint Crafts Council
and International
Federation of Professional and Technical
Engineers, Local 17,
it has agreed to increase wages by 90% of
the
CPI-W in subsequent contract years. (See, Transcript, vol.
V, p. 1176).
Additionally, the parties used the 90% CPI-W
formula in their expired agreement. (See, Association's
Exhibit No. 4, App. A). In consideration of the parties'
past agreement, settlements with other
unions, and the objec-
tive of tying wages of this
bargaining unit to a percentage
of the CPI, 90% is the more appropriate
figure to use.
A
second change in the Employer's proposed third year
wage increase focuses on the index to be
used. Professor
Knowles
presented unrebutted testimony that the Bureau
of
Labor Statistics now discourages using local
indices in labor
settlements because their frequency and
reliability have
decreased in recent years. (See, Transcript, vol. 6, pp.
1369-1371).
Consequently, it is currently more appropriate
to link the third year wage increase to the
Consumer Price
Index for Urban Wage Earners and Clerical
Workers. The CPI-W
is an older index than the CPI-U, and the
CPI-W has histori-
cal roots that link it to the index which
was initiated during
World War I for use in wage negotiations. Hence, it is
reasonable to use the CPI-W for all cities.
VI. THE
ISSUE OF SPECIALTY PAY
A. Proposal:
The
Association has proposed that the basic monthly
salary of a police lieutenant assigned to
the Bomb Squad be
increased by 5%.
B. Discussion:
The
current practice is for police lieutenants on
assignment to the Bomb Squad to receive 5%
of the "top step"
police officer's salary. (See, Transcript, vol. I, p. 190).
Yet, detectives and sergeants, who are
members of the
Police Officers Guild, receive 8% of a
"top step" police
officer's salary. (See, Association's Exhibit No. 40).
Obviously, the current structure pays police
lieutenants, who
are members of the
less compensation for serving on the Bomb
Squad than is paid
to individuals who rank below lieutenants.
The
Employer would continue this disparity.
It is the
position of the Employer that the wage
disparity is justified
by the bargaining history of the
"specialty pay" provision.
The provision states:
Effective
on five percent (5%) of the top base pay
step of
the classification Police Officer shall be
paid to
Police Lieutenant assigned to the Bomb Squad
while
so assigned.
The dollar equivalent to this percen-
tage premium is $122.00 per month,
effective September
1, 1983, and $129.00 per month effective
September 1,
1984.
(See, Association's Exhibit No. 4, p. 29).
In other words, in originally negotiating
Bomb Squad pay with
the
those individuals covered by the provision a
"flat dollar"
amount.
The
hand, wanted to link the wage rate to a
percentage of the
individuals' salary, thus allowing Bomb
Squad pay to advance
as general wages increased. (See, Transcript, vol. V,
pp. 1190-1191). This obviously is an instance where shadows
of the past are distorting present day
reality. The rationale
set forth by the Employer is not given any
force through the
Employer's current practice of paying police
lieutenants less
than detectives and sergeants for undergoing
the same hazard
and using the same skills. Current practice also has the
potential to undermine the morale of middle
level decision
makers.
A
more rational approach is to be found in the Associa-
tion's proposal. The cost of the proposal is not great. More
importantly, the inequity of paying
lieutenants less than
officers of lower rank for exercising the
same basic skills
will be removed by implementing the
Association's proposal.
Moreover, adopting the Association's
proposal will recognize
the special role and increased decision
making responsibility
borne by management personnel assigned to
perform Bomb Squad
duty.
VII. THE
ISSUE OF CAREER DEVELOPMENT INCENTIVES
A. Proposal:
The
Association has proposed that two contractual provi-
sions which focus on career
development be included in the
parties' agreement. First, the Association seeks educational-
longevity pay for members of the bargaining
unit. Pursuant
to this proposal, a member of the bargaining
unit with one year
of college education or five years of
service will receive
an additional 2.5% in base monthly
salary. If that indivi-
dual had obtained two years of college
education or ten
years of work experience, he or she would
receive an additional
5% of compensation. With three years of education or fifteen
years of service, he or she would receive an
additional 10% of
salary.
With an MA or MS degree, 11% in salary would be
added.
If the individual had earned a Ph.D. or J.D. degree,
he or she would receive 12% more monthly
pay. The proposal
would permit members of the bargaining unit
to compound full
increments of educational training with
years of service to
obtain a maximum of 10% of career
development pay. Under the
plan, longevity pay eventually would cease
to exist.
Second,
the Association has proposed a plan of tuition
reimbursement for pre-approved college
courses. Under this
plan, members of the bargaining unit who
received a grade of
"A" would be paid the lesser of
100% of the cost or $300.00.
For a grade of "B," the individual
would receive the lesser
of 75% of the cost, or $225.00; and for a
grade of "C," he
or she would receive the lesser of 50% of
the cost or $150.00.
Bargaining unit members would be permitted
to take as many
as two courses at any one time, and the plan
would apply to
course work completed on or after
B. Discussion:
A
fundamental justification for the Association's pro-
posal is that highly educated
police management personnel are
a central part of a top quality, highly
professional city
police department. It is the belief of the Association that
providing additional pay for increased
levels of college edu-
cation would create an effective
incentive for members of the
bargaining unit to seek further college
training. Such a
plan also would reward those individuals who
already have
attained higher levels of education through
their own efforts.
Furthermore, the Association has maintained
that its proposal
will encourage police officers who aspire to
managerial
positions to seek additional education.
The
arbitrator has no doubt that education plays an
important role in establishing and
maintaining a professional
police department. This is as true for managerial personnel
as it is for an officer "on the street." The American Bar
Association project on standards for
criminal justice has
recognized the need to attract to police
work and police
administration individuals with a broad
liberal education.
One observer has stated:
The qualities which law enforcement leaders claim
to look for in
recruits are the very ones
which liberal education is believed to
nurture:
knowledge of changing social, economic and
political
conditions; understanding of human behavior;
and
the ability to communicate; together with
the assump-
tion
of certain moral values, habits of mind, and
qualities of self-discipline which are
important
in sustaining their commitment to public
service.
(See, Association's Exhibit No. 57, p. 218).
At
the same time that more education is desirable within
the work force, the most effective means for
attracting quali-
fied individuals well might be
paying a salary that adequately
reflects the higher educational training expected
of such
individuals.
This is a more direct and efficient means of
achieving the Association's goal for its
members. The
Employer submitted evidence showing that
most members of this
particular bargaining unit already have
achieved a solid
education.
(See, City's Exhibit Nos. 174, 175, and 176).
Additionally, because the Employer has
tended to encourage
internal promotions, most members of the
bargaining unit have
served a great many years with the
department. Consequently,
career incentive pay would serve not so much
as an incentive to
obtain more education as it would serve as a
reward for past
efforts.
This objective is better accomplished by paying
members of the bargaining unit higher
compensation in recog-
nition of their status as highly educated,
experienced mem-
bers of the department.
It
also must be recalled that 52% of all sergeants in
the department applied for the position of
"police lieutenant"
in the last qualifying examination. (See, City's Exhibit No.181).
The point is that police sergeants clearly
have a view of
being promoted to a managerial position as a
desirable goal.
It is reasonable to believe that this partly
is because man-
agerial
positions are relatively well paid. To
the extent
that a higher degree of education increases
their chance to
be assigned to such a position, police
officers already have
a strong incentive for obtaining further
education.
The
Association has argued that four of the seven compara-
tive cities have established some
form of educational and/or
longevity pay for police managerial employes. (See, Associa-
tion's Exhibit No. 3). Fairness requires, however, that this
"additional" contractual benefit
be evaluated in relationship
to the total compensation package received
by police managers
in those cities. For example,
tional pay for police managers to
the position of "lieuten-
ants," an apparent compensation for
giving them the lowest
monthly salary of any of the stipulated West
Coast cities.
(See, Transcript, vol.11, p. 155). To the extent that Seattle
police managerial personnel are provided
comparable total
compensation, the fact that other cities
provide educational
and/or longevity pay becomes less convincing
as a basis for
including it in this agreement.
Nor
can one lose sight of the enormous expense to the
Employer of the Association's career
development incentive
proposal.
At current salary rates, the minimum additional
salary to be received by each bargaining
unit member would
be $5000.00.
(See, Transcript, vol. V, p. 1092).
Over a
three year period, the Association's
proposal could cost the
Employer approximately a million
dollars. (See, City's
Exhibit 158). In balancing the interests of the parties and
the gains to be obtained by the
Association's proposal, it is
reasonable to conclude that the cost simply
is too great at
this time.
Much
the same rationale militates against accepting the
Association's tuition reimbursement
proposal. The Association
was persuasive in its contention that
training programs
currently paid for by the Employer do not
provide educational
benefits equivalent to those attained
through college course
work.
The fact remains, however, that most members of this
bargaining unit already have obtained a
considerable amount
of college education.
The
Association has argued that many members of the
bargaining unit have financed their
education through the
federal Law Enforcement Education Program, a
program that no
longer exists. (See, Transcript, vol. II, p. 324). As a
result, an alternative means for financing
educational pro-
grams of bargaining unit members is needed,
according to
the Association. Direct wage payments, however, are the most
efficient means of enabling bargaining unit
members to advance
their education and this does not become
encumbered with additional
bureaucratic overlays inherent in
implementing the Association's
proposal.
The worthwhile objective of providing the addi-
tional benefit does not merit the
costs that would be generated
were the proposal adopted. The Employer's estimated cost of
the proposal is over $60,000.00. (See, City's Exhibit No.
160).
In
summary, the Association's proposals with respect to
career development incentives have not been
included as a
part of the next agreement between the
parties. It is impor-
tant to emphasize, however, that
the rationale for not doing
so has rested on the assumption that members
of the bargaining
unit receive total compensation reasonably
comparable to that
of relevant personnel in comparative
cities. This fact has
provided an additional reason for not
adopting the City's
modest wage proposal. By paying members of the bargaining
unit total compensation appropriate to their
level of experi-
ence and education, they will be
rewarded for their past
educational accomplishments. More importantly, the police
department will continue to attract a highly
educated, pro-
fessional
managerial staff and will do so without incurring
the burdensome administrative costs entailed
by the Associa-
tion's proposal.
VIII. THE
ISSUE OF DISCIPLINE
A. Proposal:
The
Association has submitted a two-part proposal with
respect to discipline. First, the Association proposes that
a "just cause" provision be added to the collective
bargaining
agreement between the parties. Second, the Association
proposes that either the present
disciplinary procedure be
incorporated into the parties' agreement or
that any discip-
linary procedure negotiated between
the Employer and the
Seattle Police Officers Guild be
incorporated into the agree-
ment with the Seattle Police
Management Association, provided
that if those two parties resolve the issue
in interest
arbitration, the Association be permitted to
appear and
participate in the proceeding.
B. Discussion:
In
response to the Association's proposal, the Employer
has argued that disciplinary procedures
currently used in the
Seattle Police Department are adequate and
respond to the
needs of the parties. It is the contention of the Employer
that lieutenants and captains in the department
already enjoy
several sources of protection from unjust
discipline. For
example, lieutenants and captains may use
the Manual of
Rules and procedures of the Seattle Police
Department. In
addition, these personnel have access to the
Public Safety
Civil Service Commission pursuant to the
Rules of Practice
and Procedure of the Commission. Additionally, they may
appeal to a local Superior Court. It is the contention of
the Employer that such procedures more than
adequately protect
the needs of lieutenants and captains.
With
respect to majors, the City has acknowledged that
City Ordinance 4.08.060 covers not only
lieutenants and
captains but excludes majors from its
jurisdiction. Majors
in the department serve at the behest of the
Chief of Police.
That is appropriate, according to the
Employer, because majors
are top level managers on whom the chief
relies in determining
and carrying out important policy
objectives. The City has
argued that, without the total confidence of
the chief of
police, majors would be unable to serve
effectively in this
position.
Consequently, the City has argued that the chief
must be permitted absolute, unilateral
discretion to choose
and, if necessary to replace majors whom he
believes to be
incompatible with his goals. To the extent that a "just
cause" provision would alter this
arrangement, it allegedly
would be consistent with the best interests
of the parties.
Placing
"Just Cause" in Context. It
is not unusual
for public sector administrators to
view grievance
procedures as disruptive. (See, Patterson, The Public Admin-
istrator's
Grievance Arbitration Handbook,
p. 4 (1983)). It
also is not unusual for management to urge employes to rely
on protections made available through civil
service commis-
sions. But public sector collective bargaining has
added a
dimension that has begun altering
traditional attitudes. As
one author observed almost a decade
ago, the existence and
growth of collective bargaining is
circumscribing the tradi-
tional role of civil service commissions
as the personnel
arms of government." (See, Reeves, Collective Bargaining in
the Public Sector,
p. 38 (1978)).
There
are at least two primary reasons for adopting some
sort of grievance procedure as a part of the
collective
bargaining relationship between the
parties. First, a griev-
ance procedure represents more
than just another article in
a negotiated agreement. It represents a statement about the
parties' understanding of their
relationship. A somewhat
lengthy statement by the
primacy of a grievance procedure in a
collective bargaining
relationship. The Court has stated:
A collective bargaining agreement is an
effort to
erect a system of industrial
self-government. When
most parties enter into professional
relationships
they do so voluntarily, in the sense that
there is
no real compulsion to deal with one another,
as
opposed to dealing with other parties. This is
not true of the labor agreement. The choice is
generally not between entering or refusing to
enter
into a relationship, for that in all
probability
preexists the negotiations. Rather, it is between
having that relationship governed by an
agreed upon
rule of law or leaving each and every matter
sub-
ject
to a temporary resolution dependent solely
upon the relevant strength, at any given
moment,
of the contending forces. The mature labor agree-
ment
may attempt to regulate all aspects of the
complicated relationship, from the most
crucial
to the most minute over an extended period
of time.
Because of the compulsion to reach agreement
and
the breadth of the matters covered, as well
as the
need for a fairly concise and readable
instrument,
the product of negotiations [the written
document]
is, in the words of the late Dean Shulman, 'a compi-
lation of
diverse provisions: some provide objec-
tive
criteria almost automatically applicable;
some provide more or less specific standards
which
require reason and judgment in their
application;
and some do little more than leave problems
to
future consideration with an expression of
hope
and good faith.' Gaps may be left to be filled in
by reference to the practices of the
particular
industry and of the various shops covered by
the
agreement.
Many of the specific practices which
underlie the agreement may be unknown,
except in
hazy form, even to the negotiators. Courts and
arbitration in the context of most
commercial con-
tracts are resorted to because there has
been a
breakdown in the working relationship of the
par-
ties; such resort is the unwanted exception. But
the grievance machinery under a collective
bargain-
ing
agreement is at the very heart of the system
of industrial self-government. Arbitration is the
means of solving the unforeseeable by
molding a
system of private law for all of the problems
which may arise and to provide for their
solution
in a way which will generally accord with
the
variant needs and desires of the
parties. The pro-
cessing
of disputes through the grievance machinery
is actually a vehicle by which meaning and
content
are given to the collective bargaining
agreement.
(See, United Steelworkers of
Gulf
Navigation Company, 363
The
point is that a grievance procedure, including the
concept of just cause, is a part of a system
of self-government.
The objective of the system is not only to
secure justice for
those covered by the agreement but also to
assist an employer
in its quest for productivity and
efficiency. If a grievance
arbitrator is asked to assist in the
relationship of the
parties, it is his or her obligation to
recognize the continu-
ing nature of the relationship
between the parties. Within
the context of that continuing relationship,
he or she, then,
attempts, based strictly on objective
evidence submitted by
the parties, to determine their contractual
intent and to
implement it.
A
second reason for adopting a traditional grievance
procedure as part of the parties' agreement
involves the
concept of just cause. This is not a mystifying or elusive
concept, even though no standardized
definition can be applied
like a mathematical formula to all
problems. The concept of
"just cause" has brought to the
work place fundamental
notions of due process that have provided
the basis for the
foundation and growth of justice in the
cause"
assumes that there will be a reasonable basis for a
managerial decision to impose
discipline at the time of the
discipline.
Thus, an employer will not be permitted to
discipline based on arbitrary, capricious,
or discriminatory
considerations. "Just cause" would be violated if management
searched for just cause reasons for an
action after making
the decision. It is assumed that just cause will be based
on a valid type of employe
failure and not merely on indivi-
dual preferences or predilections. "Just cause" uses a
carefully defined concept which has been
explored and explained
by literally hundreds of arbitration
decisions during the
past forty-five years. (See, for example, criteria used by
Arbitrator Daugherty in Grief Brothers,
(42 LA 555 (1964)).
An
integral part of the concept of "just cause" is that
of due process. One of the ironies of civil law is that it
has not developed protections in the work
place that are as
effective as those of the concept of
"just cause." This is
best exemplified by the facts in the Bishop
v. Wood case. In
that case, management had discharged a
police officer after the
chief of police concluded that his work was
unsatisfactory.
Believing his employment status was a
property right which
had been violated without regard for his due
process rights,
the police officer challenged the
decision. In the view of
the
individual enjoyed would not give him a
guarantee against
incorrect or ill-advised personnel
actions. (See, Government
Employment Relations Reporter, 661:F-1,
recently, the
may not be deprived of his or her
substantive rights to
property except pursuant to constitutionally
adequate pro-
cedures. (See, Cleveland Board of Education v. Loudermill,
105 5. Ct. 1487 (1985)). What the Court held, however, was
that the due process clauses of the fifth
and fourteenth
amendments require "some kind of hearing" prior to
discharge.
(See, 105 S. Ct. 1487, 1493 (1985)).
It
still is not clear what requirements of procedural
due process public employes
enjoy if the managerial action
does not involve discharge. It also must be understood that
the
stitutes
procedural due process. Rather, the
Court has stated
that "the exact boundaries [of due
process] are indefinable,
and its content varies according to specific
factual contexts."
(See, Hannah v. Larche,
363 U.S. 420 (1960)). The
Supreme Court has taught us that "a
fundamental requirement
of due process is the opportunity to be
heard." (See, Arnett
v. Kennedy,
416
Arbitration
law much more carefully and definitively has
developed the notion of due process as a
part of the concept
of "just cause. " Numerous cases have dealt with concepts
such as an employe's
foreknowledge of the work rules; the
relationship of the work rule to the safe,
efficient, and
orderly operation of an agency; the adequacy
of any investi-
gation into an incident; the
sufficiency of the evidence
against an employe;
whether or not the decision was free of
arbitrariness and discrimination; and the
relationship of the
discipline imposed to the seriousness of the
offense. There
are numerous arbitration cases and secondary
treatises on the
subject.
(See, for example, Elkouri and Elkouri, How
Arbitration Works,
(1985); and Fairweather, Practice and
Procedure in Labor Arbitration
(1983)).
The
point is that protections set forth by the City's
alternative procedures are not equivalent to
those provided
by a "just cause" provision. For example, what standard of
proof would be required of the Employer in
proving a lieutenant
or captain guilty of misconduct under its
proposal?
There are well developed guidelines in
arbitration law that
have been
defined over the years. "Just cause" provisions
are not unusual. A survey by the Bureau of National Affairs,
Inc., of four hundred collective
bargaining agree-
ments showed "just cause"
provisions in ninety-eight percent
of them.
(See, Basic Patterns in Union Contracts, p. 6
(BA Books, 1983).
It
is unreasonable to expect to be able to answer a
major who had been demoted on potentially
erroneous grounds
that managerial discretion requires such
flexibility and unfettered
control.
The demands of equity must be answered in par-
ticular
cases. Nor does the fact that in the
past members of
this bargaining unit have accepted a
contractual provision
allowing such a result have persuasive
power. If there is a
dispute involving a clearcut
managerial right and the evi-
dence is ambiguous, perhaps the
benefit of the doubt would
favor the Employer. But in matters of discipline where there
has been ambiguity, there has been an inclination
to favor a
grievant, as reflected by the fact that the
burden of proof
in discipline cases has been on the
employer. In discipline
and discharge cases, the outcome often will
dramatically
affect a person's livelihood, and there
should be a scrupu-
lously fair opportunity to test the
decision making process
that placed an individual in such a
predicament.
It
should be recalled that the Association has indicated
its willingness to incorporate into a
"just cause" provision
a number of limitations. First, the Association accepts the
proposition that an employe
who pursues the remedy of arbi-
tration
must waive other methods of appeal.
Second, a major
who seeks a remedy for reassignment pursuant
to the "just
cause" provision may do so only when
the Employer has stated
that the reason for reassignment was the
individual's miscon-
duct.
(See, Association's Post-hearing Brief, p. 54, fn. 17).
These modifications to a standard "just
cause" provision
are directly responsive to concerns of the
Employer with such
a provision.
A
second part of the Association's "discipline" proposal
is troublesome. The Association would incorporate into the
parties' collective bargaining agreement
present disciplinary
procedures or some procedure used by the
Officers Guild, assuming certain conditions could be met.
The Employer has been convincing in its
contention that
incorporating the discipline provisions of
the Police Depart-
ment Manual into the parties'
agreement would be undesirable.
For example, it would be exceedingly
difficult to make neces-
sary changes in the procedures
because of the impact on col-
lective
bargaining negotiations. In the absence
of more
extensive testimony and a more detailed
scrutiny of various
procedures, interest arbitration does not
provide an effec-
tive forum for selecting an
appropriate disciplinary procedure
for the parties.
The
fact remains that the Association has demonstrated
the existence of a genuine problem with
respect to current
disciplinary procedures. (See, Association's Exhibit No. 52
and Transcript, vol. II, pp. 231-233). It is appropriate for
members of the bargaining unit to expect to
participate in
whatever changes are made in the
procedures. Some appropriate
mechanism is needed for insuring such participation.
A
sensible solution to the problem is to establish a
joint labor-management committee whose
function is to review
provisions of the disciplinary procedures
that the Employer
believes to be outmoded so that the parties
can fashion a
system that is directly responsive to their
needs. Such
committee would be in a position to make
recommendations
for updating departmental procedures as
necessary. In this
way, members of the bargaining unit will
have an opportunity
to point out what they perceive to be as
inadequacies in any
proposed changes, and the Employer will be
able to update and
streamline the Manual.
AWARD
Having
carefully considered all evidence submitted by
the parties concerning this matter and in
accordance with
RCW 41.56.460, the arbitration panel in the
impasse between
the City of
Association makes the following
determinations:
1. WAGES
For
the contract year beginning
members of the bargaining unit shall receive
a 4% salary
increase.
Base monthly salaries for police lieutenants,
captains and majors shall be $3,828.00,
$4,402.00, and
$5,062.00, respectively.
For
the contract year beginning
members of the bargaining unit shall receive
a salary
increase of 4.4%.
For
the contract year beginning
members of the bargaining unit shall receive
90% of the
CPI-W (all cities), with a minimum wage
increase of
3% and a maximum increase of 7%.
2. CAREER
DEVELOPMENT INCENTIVE
Neither
the educational-longevity pay proposal
nor the tuition reimbursement proposal of
the Association
shall be included as provisions in the next
collective
bargaining agreement between the parties.
3. SPECIALTY
PAY
The
next collective bargaining agreement between
the parties shall provide that lieutenants
assigned
to Bomb Squad duty shall receive an
additional 5%
of their actual wage rate during the period
of that
assignment.
4. DISCIPLINE
The
next agreement between the parties shall
include a provision stating that it is a
right of
management to suspend or discharge employes or take
other disciplinary action with just
cause. Addition-
ally, the parties shall establish a joint
labor-
management committee with each party having
equal
representation, and the charge to the
committee shall
be to review and make recommendations with
respect to
changes that should be made in the current
Police Department Manual, as it relates to
the devel-
opment of a grievance procedure of a
sort that is
responsive to the needs of the parties and
the sort
customarily found in collective bargaining
agreements.
It shall culminate with arbitration as the
final step
of the procedure, using rules of the
American Arbi-
tration
Association.
These
determinations shall be implemented consistent
with the report issued in conjunction with
this award. The
arbitration panel shall retain jurisdiction
in this matter
for thirty days from the date of the report
in order to
resolve any problems resulting from its
determination.
Respectfully submitted,
Lieutenant John Carson,
Association's party appointed
Panel Member
Date:____________________________
Ms. Carol Launch
City's party appointed Panel
Member
Date:_____________________________
Professor Carlton J. Snow
Neutral Panel Member and
Chairman of the Arbitration Panel
Date:_____________________________
IN
THE MATTER OF INTEREST ARBITRATION
BETWEEN
AND
CITY
OF
(PERC
No. 6502-1-86-148)
ASSOCIATION PARTISAN ARBITRATOR'S
OPINION
I
regret that I am unable to sign the report of the
neutral chairman. The report has a number of problems that
would not be productive to detail here.
Most
disappointingly, the report of the neutral chairman
provides no guidelines to assist the parties
in settling their
next contract by negotiation, rather than by
resort to time-
consuming, expensive, and divisive
litigation.
Interest
arbitration decisions are most helpful to the
parties if they clearly set forth definitive
guidelines in
terms likely to be persuasive to future
arbitration panels, and
therefore, to the parties themselves. Thus, for example,
guidelines articulated in arbitration
reports issued in 1982
and 1983 enabled the Association and the
City to stipulate to
the
appropriate cities for comparisons pursuant
to RCW
41.56.460(c). Past reports also enabled the parties to
stipulate to much of the basic compensation
data and to the
manner in which it should be developed and
presented to the
panel.
Regrettably,
the report of the neutral chairman in this
case provides no such guidelines. Instead, the report engages
primarily in the sort of non-quantitative
balancing that
invites further protracted litigation.
In
fact, the report actually exacerbates the situation.
By placing such heavy reliance on incomplete
data from Puget
Sound jurisdictions presented by the City,
the report effec-
tively departs from the stipulated
comparisons under RCW
41.56.460(c). Moreover, the use of such incomplete data
from
much smaller jurisdictions in this
proceeding simply broadens
the scope of the evidence the parties will
be compelled to
produce in their next round of litigation
two years hence.
Lt. John Carson,
Association Partison
Arbitrator