City
of
And
Teamsters
#117
Interest
Arbitration
Arbitrator: Charles S. LaCugna
Date
Issued:
Arbitrator: LaCugna; Charles S.
Case #: 06553-I-86-00149
Employer:
City of
Date Issued:
In Arbitration Proceedings
between Opinion
TEAMSTERS #117 and
and Award
CITY OF
I FACTS
At several brief staff meetings, the parties discussed
the
proposed policy of the Chief of Police to make a command
duty
officer available during the weekends on the swing and
graveyard
shifts because the majority of crimes take place during
this
period.
The command duty officers are the chief of police, two
captains
and three lieutenants who work from
daily.
Administratively, the captains report directly to the
chief
of police; Lieutenant Board reports to the support services
captain,
and Lieutenants Miller and Cude report to the
operations
captain.
Each lieutenant evaluates his subordinates, schedules
work
and participates in decisions concerning discipline and
discharge.
On
Policy, which reads:
_____________________________________________________
Effective immediately there is implemented a Command Duty
Officer
(CDO) program. The purpose of this program is to
make a
command officer (Captain or Lieutenant) of this
Department available on call
at all times should the
supervisor
desire his assistance and/or advice.
Each Captain and Lieutenant will be assigned as the Command
Duty
Officer on a rotating basis for one week period of time.
The assignment will begin on
Friday at 1700 and end on the next
Friday
at 1700. The CDO will be responsible to attend the
Monday
City
Council Meeting, if the Chief cannot attend.
If the
assigned
CDO is unavailable to remain on call or fulfill his
duties
it is his responsibility to arrange for another command
officer
to take his place. A current schedule of assignments
will
be maintained at the front desk and provided to the patrol
supervisors.
The CDO will remain available by telephone and/or
pager
and, if necessary, provide current contact information to
Auburn
radio.
The Command Duty Officer's basic duty is to be available to
assist
the on duty supervisor should the supervisor request it.
He shall also be responsible
to respond to major emergency
situations
requiring the presence of a command officer or where
the
on duty supervisor requests his presence.
Should the on duty supervisor need assistance or advice from
a
command officer, the supervisor should first attempt to contact
the
commander of the division involved (Patrol, Investigations,
Traffic, Records, Auxiliary
Services). If contact cannot be
accomplished,
or is inappropriate, the supervisor should contact
the
CDO . Where an emergency exists it shall be sufficient for
the
supervisor to contact
CDO respond.
The CDO shall be contacted and advised if any of the
following
events occur:
1. An officer or other police employee of the Department
is
killed or injured sufficiently to cause hospitalization.
2. An immediate family member of an officer or other
police
employee is killed or seriously injured.
3. A City of
injured,
either here or elsewhere, and any other public
official
is killed or seriously injured in our jurisdiction.
4. The filing of a complaint of serious misconduct by an
officer
or other police employee of the Department.
5. The arrest of an officer or other police employee of
the
Department, either here or elsewhere, and the arrest of any
other
police officer in our jurisdiction.
6. Criminal accusation against an
7. The arrest of an
his/her
immediate family.
8. Homicide or possible fatal injuries to the victim of a
crime.
9. Kidnapping.
10. Bombing
11. Sniping
12. Barricaded person
13. Hostages being held
14. Shooting in which an officer of the Department is
involved.
15. Death or serious injury resulting from an accident in
which a
police vehicle is involved.
16. Any serious incident which occurs in the jail involving
injury
to a prisoner or employee.
Nothing in this program is intended to change the current
responsibilities
or authority of the patrol supervisors. The
intent
of the program is to provide a reliable resource to the
supervisor
when the assistance of a command officer is required.
Nothing in this program shall prevent an on-duty supervisor
from
notifying the Chief of Police regarding significant
incidents. when such a notification is made, the CDO should also
be
advised. Any notification by the on-duty supervisor to the
CDO of a significant incident
shall relieve the supervisor of the
responsibility
of making further notification to command
personnel
unless directed to do so. It shall be the
responsibility
of the CDO to see that such further notifications
are
made if he deems them necessary.
_____________________________________________________
Briefly, this policy requires captains and
lieutenants, to
be
"available by telephone and/or pager" and, if called out, a
CDO must respond within
"a reasonable period of time and to keep
himself
in condition to respond." If the force were at full
strength,
a CDO officer would have CDO duty once every five
weeks.
At present, he has duty every four weeks because two
captains
are on leave and the Chief takes a turn.
On
views
on the policy to the Chief. They calculated that the
policy
required them to be "on call" for 1280 hours per year, the
equivalent
of 16 8-hour work periods. Although they did not
disagree
with the objectives of the program, they thought that
they
were entitled to some compensation because the duty exceeded
"casual
overtime," it "greatly restricted" their personal
activities,
and it imposed a burden because they had to respond
within a
minimal period of time. The Chief's view was that the
policy
was not "a significant intrusion on your off-duty time,
especially
when you are allowed the flexibility by the policy for
having
someone standby for you" (Letter of September 3, 1985).
In negotiations for a successor collective bargaining
agreement,
the City and the
following
terms for the 1986 agreement:
1. Wages - increase 2.e%
2. Instant Death Benefit - a instant death benefit to
survivor
(line of duty death).
3. Health and Welfare - The city will continue to pay the
full
premiums for the Association of Washington Cities Dental
Plan and Medical Plan as
revised by AWC effective
and
currently in effect.
4. Term of Agreement - From date signed by the City and
5. Other Provisions of 1985 Agreement - no change.
6. Outstanding ULP's or Grievances -
none.
But, the parties could not reach agreement on two issues:
overtime
compensation and additional compensation for the command
duty
officer (CDO) program for lieutenants. To complete an
agreement,
they declared that they were at impasse on these two
issues
and jointly requested the Public Employment Relations
Commission (PERC) for a
mediator. They also agreed that if
mediation
failed, they would submit these two issues to interest
arbitration
under RCW 41.56.45.46 (Impasse Agreement).
Mediation was unsuccessful,
the Executive Director of PERC
declared
an impasse, and the parties proceeded to arbitration. On
issues,
the parties were able to agree on the first issue,
overtime
compensation, but they could not agree on the second
issue,
additional compensation for the command duty officer.
Therefore, the only issue
before the arbitrator is:
Shall the City be required to
pay additional compensation
to
the lieutenants for the command duty officer (CDO)
assignment?
(Impasse Agreement)
The parties stated their respective positions in the Impasse
Agreement.
The
assignment
is extra duty, lieutenants are not compensated
adequately
already, and additional compensation is justified.
The
In the event that an employee
is assigned to the command
duty
officer assignment, such employee shall receive four
(4) hours
additional compensation for each eight (8) hours
of
assignment to the command duty assignment.
The City's position, restated, is: The command duty
assignment
is part of the lieutenant's job, the lieutenants are
compensated
adequately already, and no additional compensation is
justified.
II THE STATUTORY CRITERIA
Mindful of legislative intent, I interpreted and applied the
statutory
criteria (RCW 41.56), examined the parties' data,
analyzed
their arguments, and arrived at the judgment set forth
in
the Award.
(a) The constitutional and statutory authority of the Employer.
The City has the constitutional and statutory power to pay
lieutenants
additional compensation. It refuses to do so; I have
given
this factor some weight.
(b) Stipulations of the parties.
The parties stipulated the comparable cities:
(c) comparison of the wages, hours,
and conditions of employment
of
personnel involved in the proceedings with the wages, hours
and
conditions of employment of like personnel of like employers
of
similar size on the West Coast of the
The
in
the comparable cities and concluded that none of the
stipulated
comparable cities has a CDO program identical to or
the
equivalent of
Renton has a CDO program, a
program similar to
but
"substantially less intrusive on the lieutenant's off duty
time"
(Br. p.12).
The
phone
or pager; these three cities do not intrude on an officer's
off
duty time.
lieutenants
are combined in a commander position. Of two
commanders,
one never carries a pager; the other always does but
he
can assign the duty to a sergeant.
commander's
off duty time. Further,
six
days of administrative, provides him with a car, and the City
does
not enforce the thirty (30) minutes response time (
Exh.
5). Still further, the monthly rate of pay of a
commander
is 14.5 percent higher than the monthly rate proposed
by
the City of
"informal"
unwritten one: lieutenants carry pagers but they need
not
respond in person and there is no specific response time.
intrusive
because lieutenants are on call 7.4 weeks per year,. not
13
times a year as in
Auburn lieutenants had CDO
duty one week in every five weeks, 4
percent
more than the
must
spend 91 days a year on CDO duty;
than
53 days. The current four man rotation program which began
in
June 1986 is more intrusive than
Auburn lieutenants are on call
81 percent more often than the
hour;
in
may
exchange CDO duty and they are free to notify the Chief if
they
want to be relieved from the duty and have been unable to
obtain a
replacement. But, in
duty
if they are unable to obtain a replacement. The small
number
of lieutenants in
available
to a lieutenant to exchange the CDO duty; and
lieutenants
are loathe to sacrifice their limited number of free
evenings
and weekends. Further, the
vehicle
during his off duty hours. And, if the
called
out, he receives paid overtime at one and a half times his
usual
hourly rate, with a minimum of two hours per callout.
Auburn lieutenants receive no
pay for callouts unless the callout
exceeds
four hours. The record shows that
have
been called out at night, worked for more than three hours
but
received neither overtime nor comp time. One lieutenant has
accumulated
53 hours of uncompensated CDO callout time. Still
further,
the base salary and overtime provisions for
lieutenants
are about six percent higher than the base salary and
overtime
provisions in
The disparity becomes more
marked if the compensation for CDO
duty
is added to their salary.
The
compared
to the 1986
less
intrusive and the labor relations context in
substantially
different from that in
interest
arbitration are not available to the
because
they are unrepresented. The
to
give greater weight to "traditional labor relations
standards."
The City admitted that
to
lieutenants but it pointed out that the wage differential
existed
before the CDO program, and that the wages of the
lieutenants
in
in
out
that all comparable jurisdictions except
no
jurisdiction paid the off duty officers to carry a pager; and,
Renton's CDO program, the
model for the Auburn program, does not
pay
CDO officers additional compensation when assigned CDO duty.
The City also admitted that commanders in
comparable
to lieutenants; they were someplace between a captain
and
lieutenant but this is "the best match" the City could make
(Br. p.
8). The City admitted that the "comparable cities" are
not
comparable in many respects. But these cities have two
common
features: first, command officers usually carry pagers to
keep
them in contact with their department during off duty hours,
and,
second, none of the comparable cities grants additional
compensation
solely for carrying a pager.
FINDING: I have given no weight to the
"comparability"
guideline.
The
"comparable"
cities are not comparable on the CDO issue.
(d) the average consumer prices for
goods and services, commonly
known
as the cost of living.
The
no
way compensates the lieutenants for their increased duties
because
from
contract,
and
the
CPI-W rose 2.2 percent. By either measure, the two percent
wage
increase for 1986 is less than the CPI increase. If the
January 1985 to January 1986
and the January 1985 to November
1986 figures are averaged,
they yield 2.4 percent. The City did
not
take into account the increases that occurred between January
1985 and November 1986 in
computing an appropriate 1986 pay rate
(Br. p.
10).
The City pointed out that the All Urban Consumer Price Index
for
the year ending November 1986 for the Seattle-Everett area
was
.6% and that the Urban wage Earners and Clerical Workers
Index for the same period was
.3%. Hence, "the compensation
package
offered the lieutenants even without any compensation for
the
CDO program greatly exceeds the Consumer Price Index." (
p.
1, City Exh. 16).
FINDING: I have given no weight to this guideline. Neither the
union
nor the City advanced persuasive arguments.
(e) Changes in any of the foregoing circumstances during the
pendency of the proceedings.
None
(f) Such other factors not confined to the foregoing, which are
normally
or traditionally taken into consideration in
determination
of wages, hours and conditions of employment.
1. The comparison between a police lieutenant and a
battalion
chief
The
determine
whether or not lieutenants should be paid additional
compensation
is to compare a CDO lieutenant in the police
department
with a battalion chief in the Fire Department. A
battalion
chief in the Fire Department holds a supervisory
position,
so does a lieutenant in the Police Department; their
duties
are not qualitatively different. Both officers must be
ready to
respond to any call within a very short time; neither is
free
to go more than 3 miles from
must
be available to respond to serious fire calls on week ends
when
no officer of appropriate rank is on duty.
The
chief
is on "standby" time the duty is "more analogous" to
"on
call"
than to a standby because a battalion chief is free to go
about
his own business, so long as he is able to respond to the
nearest
fire station in the City of
The major difference between a
battalion chief and a lieutenant
CDO is the length of duty
time: a battalion chief's duty
assignment
lasts for a maximum of 6 hours; the CDO assignment
lasts
for seven days. A battalion chief is paid time and a half
when
called back to the station in addition to their duty officer
pay,
but the lieutenants are paid neither for their CDO time nor
for
their callbacks. A battalion chief can earn an added 6.2
percent
on his annual salary, or approximately for 52
hours.
In contrast, a lieutenant, on a four week cycle, spends
1,664 hours per year on on call status but receives no pay for
any
of their CDO activities.
The City rejected the comparison between a police lieutenant
and a
battalion chief. First, a lieutenant and a battalion chief
are
not "like personnel" under RCW. 41.56. Second, a battalion
chief
is a firefighter and a lieutenant is a police officer.
Third, a battalion chief works
24 hour shifts on a rotation
schedule
of one day on and two days off. During swing and night
shifts,
a battalion chief is completely in charge of the entire
department.
A lieutenant works a 9-5 daily shift. Fourth, the
parties
agreed to "comparable cities" not to a comparison between
police
and fire personnel. Fifth, a battalion chief on standby
must
respond to the station within 15 minutes after a call; there
are
no exceptions to this rule. A battalion chief receives an
average
of two calls per night; a CDO officer gets two calls per
month.
During the last six months, a battalion chief has had to
respond
to the station 23 times; a police lieutenant has had to
respond
to the station eight times in the past 18 months. Sixth,
other
personnel in the City perform additional duties but receive
no
additional compensation.
FINDING: I have given no weight to this guideline. The City's
reasons
conclusively show that a police lieutenant and a
battalion
chief are not comparable.
2. The City's agreements with other bargaining units.
The City urged the arbitrator to note that only three
bargaining
units did not settle for a 2% increase, the same 2%
wage
increase offered lieutenants. First, the finance and
clerical
workers received 1.78% increase, the increase agreed to
for
the second year of their contract. Fire fighters received a
3% increase during the first
year of their contract and only a
1.5% increase during the
second year. Finally, non-commissioned
clerks
and jailers received a 3% increase because the pay of
these
employees was not comparable to the pay of other similar
positions
in the City.
FINDING: I have given this guideline some weight.
3. The traditional differential between the officers rank in
the police
department.
The City pointed out that an award of additional
compensation
to lieutenants would destroy the traditional
differential
between sergeants, lieutenants, captain and the
chief.
The differential between lieutenants and captains is
approximately$3000;
the differential between the captains and
the
chief is about $2000. The Chief carries a pager 24 hours a
day,
seven days a week. Were the arbitrator to award
lieutenants
the
compensation they ask for, the would be paid an estimated
$17,000
more per year.
The
between
ranks, " a reflection of increased rank and
responsibility,"
does not compensate lieutenants for CDO duties
because
none of the differential can "properly be allocated as
compensation
for the CDO program" (Br. p 2-21). Lieutenants
should
receive additional compensation even if the compensation
upsets
the current salary rank among City employees because the
premium
pay for patrolmen and battalion chiefs has already
substantially
modified the salary structure. A battalion chief
who
works his full turn of duty officer will have an income well
in
excess of $43,000 even if overtime for callbacks is not
included.
Already, at least two police officers in
incomes
of $43,000 or more if premium pay for overtime,
callbacks,
and standby and the cash value of their comp time are
included.
Three battalion chiefs and two patrolmen may well have
incomes
that would place them in the top ten employees and above
City
Engineer and the Planning Director. The City should not
impose
additional duties on the lieutenants and refuse to
increase
their pay to maintain "some artificial parity." The top
ten
paid employees in the City are not required to remain in an
on
call status for one week each month. The lieutenants are
uniquely
situated, their right to be compensated for CDO time
should
be resolved independently of the salary of other City
employees.
FINDING: I have given some weight to this guideline and
discussed
it in my conclusion.
III CONCLUSION
To meet the lieutenants' objections to the CDO program, the
City restated the purpose of
the CDO program: to have a command
officer
available by phone or pager in the event of an emergency
(Br. p.
9). And, because the CDO program "maybe somewhat more
restrictive
than the previous system," the City modified the
program
in January 1987. It provided a pager with an estimated
range
of 6 miles and it declared its willingness to relax the
period
within which lieutenants would be required to physically
respond
to the Department. The
policy
makes the CDO program "less oppressive" but insisted that
lieutenants
be paid four hours pay for every eight hours on CDO
duty
because the CDO program imposes additional job duties on
lieutenants
and the CDO program restricts the private life of
lieutenants.
And, the
and a
half because this award would not recompense lieutenants
for
maintaining themselves in a constant state of readiness and
immediate
availability.
QUESTION: Shall the City be
required to pay
additional
compensation to the lieutenants
for
the command duty officer (CDO)
assignment?
Answer: Yes.
The
should
be paid additional compensation because the CDO program
imposes a
new condition of employment, a psychological and
physical
restriction which reaches into and intrudes upon the off
duty
time of lieutenants for 13 weeks a year. To arrive at the
amount
of compensation, I have taken into account the following
mix
of contributing and restraining factors: the City's
continuing
refusal to pay any additional compensation, the
stipulations
of the parties, the total package, the
request
for an estimated per year, a sum not
proportionate
to the additional responsibilities and the number
of
times lieutenants would be called, and the psychological,
political,
and economic effects that an award of $17,000 would
have
on the differential between officers ranks, and on
other
bargaining units.
IV AWARD
The City of
lieutenant
assigned to CDO duty a flat fee of $35.00 for every
week
of CDO duty. This sum pays lieutenants for the new duty: to
be
in readiness and available during the CDO week; and (2) pay an
additional
$25.00 to a lieutenant when he is on CDO duty and is
called
out regardless of the duration of the call out. I have
purposely
awarded this modest sum for the call out to prevent
lieutenants
from returning to the station unnecessarily.
I retain jurisdiction over the interpretation and
application
of this Award until
Date: