And
AFSCME, AFL-CIO, Local 618-CD
Interest Arbitration
Arbitrator: Gary L. Axon
Date Issued:
Arbitrator:
Axon; Gary L.
Case #: 14083-I-98-00312
Employer:
Date Issued:
IN THE MATTER OF )
)
INTEREST ARBITRATION )
)
BETWEEN ) PERC
CASE 14083-1-98-312
)
AND CITY EMPLOYEES, COUNCIL 2, ) ARBITRATOR'S OPINION
AFSCME, AFL-CIO, LOCAL 618-CD, )
) AND
) 1998-2000
AGREEMENT
and )
)
)
County. )
HEARING SITE:
HEARING DATES: April
20 & 21, 1999
POST-HEARING BRIEFS DUE: Postmarked
RECORD CLOSED ON RECEIPT OF
BRIEFS:
REPRESENTING THE
General
Counsel
WSCCCE,
AFSCME,
Local 618-CD
REPRESENTING THE COUNTY: Steven M. Watson
Manager,
Labor Relations
INTEREST ARBITRATOR: Gary
L. Axon
Post
Office Box 190
(541)
488-1573
TABLE OF CONTENTS
ISSUE Page
Introduction 1
Comparability 6
Issue 1: Article II, Section 5
- Contracting 12
Issue 2: Article IX, Section 1
- Work Schedules 18
Issue 3: Policy 356 - Minimum
Staffing 26
Issue 4: Policy 357 - Vacations and Leaves 33
I. INTRODUCTION
The parties are signatories to a written Collective
Bargaining Agreement in effect
through December 31, 1997. Un.
EX. 2. The parties began preparation for
negotiation of a
successor contract. The parties held several negotiating sessions
in 1997 and 1999,
but were unable to resolve all of their
differences. Subsequent mediation sessions failed to bring
the
parties to an agreement.
On
interest arbitration pursuant
to RCW 41.56.450. Un. Ex. 1. The
case was set for hearing on
April 20 and 21, 1999. Subsequent to
the certification for interest
arbitration and submission to the
Arbitrator, the parties resolved a sub-issue over Article
II,
Section 2.a.8 - Safety and
Health. The parties were also able to
resolve the entire issue on
Article XI, Compensation. After these
negotiations four issues
remained for this Arbitrator to resolve.
referred to as the
by Interstate 5. The largest city in the County is the state
capitol of
approximately 197,600.
The Department of the County involved in this case is the
Gary P. Edwards is the
Bureau is
managed by Karen
Daniels, Chief, Department
of
Corrections. The Corrections Bureau operates a jail which
serves
as a regional facility for all
of
the average daily population
at the TCCF was 397 inmates. The
Corrections Bureau also
maintains several corrections program
options, such as work release
and electronic monitoring.
The
(
and lieutenants employed in
the Corrections Bureau. The bargaining
unit consists of approximately
68 employees in the classifications
of corrections officers and
lieutenants. The corrections officers
unit is a relatively new group
which recently separated from
another
At the commencement of the arbitration hearing, the
opening statements from the
parties revealed a sharp difference of
opinion over the issue of
comparability. In addition, the parties
also disagreed over the
methodology and means by which to compare
the contract benefits of
their counterparts in other
counties. A significant amount of
hearing time was devoted to
the presentation of evidence and
argument on the statutory
factor of comparability. The Arbitrator
directed the parties to
address the issue at the beginning of the
post-hearing briefs. The Arbitrator advised the parties he would
address the comparability
issue at the commencement of the Award.
Bargaining between the parties produced agreement on most
issues, including all of the
economic issues. However, the parties
were unsuccessful in resolving
all of the subjects that divided
them in contract
negotiations. Four fundamental contract
issues
were presented by the parties
for interest arbitration. The
parties stipulated they had
agreed the duration of the Collective
Bargaining Agreement would
cover the period
through
The hearing in this case required two days for each side
to present their evidence and
testimony. The hearing was tape-
recorded by the Arbitrator as
an extension of his personal note
taking. Testimony of the witnesses was received under
oath. At
the hearing the parties were
given the full opportunity to present
written evidence, oral
testimony, and argument regarding the issues
in dispute. Both the
with substantial
written documentation in support
of their
respective positions.
The parties also submitted comprehensive and detailed
post-hearing briefs in
further support of
their respective
positions taken at
arbitration. The approach of this Arbitrator in
writing the Award will be to
summarize the major and most
persuasive evidence and
argument presented by the parties on each
of the issues. After the introduction of the issue and
positions
of the parties, I will state
the basic findings and rationale which
caused the Arbitrator to make
the Award on the individual issues.
A substantial portion of the
evidence and argument related to more
than one of the issues and
will not be duplicated in its entirety
in the discussion of the
separate issues.
This Arbitrator carefully reviewed and evaluated all of
the evidence and argument
submitted pursuant to the criteria
established by RCW
41.56.465. Since the record in this case
is so
comprehensive, it would be
impractical for the Arbitrator in the
discussion and Award to
restate and refer to each and every piece
of evidence and testimony
presented. However, when formulating
this Award, the Arbitrator did
give careful consideration to all of
the evidence and argument
placed into the record by the parties.
The statutory criteria are set out in RCW 41.56.465(1) as
follows:
(1) In making
its determination, the panel
shall be mindful of the legislative purpose
enumerated in RCW 41.56.430 and, as additional
standards or guidelines to aid it in reaching
a decision, it shall take into consideration
the following factors:
(a) The constitutional and
statutory
authority of the employer;
(b) Stipulations
of the parties;
(c) (i) For employees
listed in RCW
41.56.030(7) (a) through (d) ; comparison
of the wages, hours, and conditions of
employment of personnel involved in the
proceedings with the wages, hours, and
conditions of employment
of like
personnel of like employers of similar
size on the west coast of the United
States;
(ii) For
employees listed in RCW
41.56.030(7) (e) through (h), 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 public fire departments of
similar size on the west coast of the
number of comparable employers exists
within the state of
west coast employers
may not be
considered;
(d) The
average consumer prices for
goods and services, commonly known as the
cost of living;
(e) Changes
in any of the circumstances
under (a) through (d) of this subsection
during the pendency of the
proceedings;
and
(f) Such
other factors, not confined to
the factors under (a) through (e) of this
subsection,
that are normally
or
traditionally taken into consideration in
the determination of wages, hours, and
conditions of employment. For those
employees listed in RCW 41.56.030(7) (a)
who are employed by the governing body of
a city or town with a population of less
than fifteen thousand, or a county with a
population of less than seventy thousand,
consideration must
also be given to
regional
differences in the
cost of
living.
Because of the voluminous record in the case, the parties
waived the thirty-day period
an arbitrator would normally have to
publish an award under the
statute.
II. COMPARABILITY
A. Background
The threshold issue to be resolved by the Arbitrator
involves the statutory factor
of comparability. Both parties
offered strong and compelling
arguments as to why their respective
list of counties should be the
one adopted by the Arbitrator to
utilize in formulating an
Award for the corrections officers
Collective Bargaining
Agreement in
differences between the
parties on the issue of comparability were
further complicated because
each side used a different methodology
for selecting the purported
comparable jurisdictions to Thurston
County.
The parties agree that
five counties are mutually
comparable as follows:
County Population
Kitsap 229,400
Whatcom 157,500
Thurston 199,700
The difference between the parties over the comparators,
is the County will only agree
to the inclusion of
There was no history of
comparators which had been used in the past
as a guide to determine the
wages and benefits for
corrections officers presented
to this Arbitrator. The initial
task of your Arbitrator will
be to formulate a list of comparable
jurisdictions that is
consistent with the statutory mandate.
B. The
The
comparators should be adopted
by the Arbitrator. The
extensively on the testimony
of Director of Staff Services, John
Cole, who explained the
methodology for determining comparable
jurisdictions. Cole began his
analysis with the proposition that
population is the single best
criteria to measure comparability.
Many arbitrators have held
population must be the determining
factor for size. Cole then used a population band of 50% down
and
50% up from
in the six jurisdictions which
fell within the population band
which the
determining the comparable
jurisdictions.
Moreover, Cole then looked at other factors to compare
these jurisdictions. He ranked each jurisdiction by revenues and
real property values. Again, these jurisdictions ran 50% up and
50% down from
The County has stipulated that Kitsap,
and
over the inclusion of
at the hearing to support
their claim that
comparable jurisdiction. Further,
the County did not offer
evidence as
to why
jurisdiction. The
population of 92,000. To make
Arbitrator would have to skip
over
of 96,900. The
a list for their benefit
rather than one that is based on well-
established arbitration case
law principles.
The
determining
comparability--such as geography--in coming up with
comparables. The County offered no evidence suggesting
that their
idea of comparables would be
more appropriate in demographic
comparability than in the
C. The County
The County begins by noting the only dispute is whether
counties. In determining
first looked at jurisdictions
within a 50% band above and below the
population of
acceptable jurisdictions of
County, and
jurisdictions, the County next
established a population band of 60%
above and below
up
uses corrections officers in
their law enforcement system, the
County excluded
Based on the
would be acceptable because
band.
The County argued that, due to
location near
should be balanced with that
of a rural county such as
County. The assessed property valuation statistics
also reveal
that a band of 50%+ would also include
same time exclude
include
if
size" analysis, utilizing
geographic proximity,
closer to
aligned with
Thus, the County submits
by the Arbitrator as a
comparable jurisdiction for the purpose of
determining wages and benefits
for
officers.
D. Discussion and Findings
The starting point for this analysis is to recognize both
parties started their search
for comparable counties using the 50%
population band above and 50%
below the
This approach yielded only
four comparable counties which both
parties believed was an
insufficient number of comparables to use
in establishing wages and
working conditions for
corrections officers. The
Arbitrator concurs with the parties that
four comparables is an
insufficient number to provide meaningful
assistance in resolving this
dispute between the
County.
By expanding the population band to 60%, the parties
picked up
some minor differences in what
the parties reported as the 1998
populations in the comparative
jurisdictions. The Arbitrator
credits the population study
done by the Municipal Research and
county populations.
appeared to be derived from a
document created from the information
provided by the Washington
State Department of Revenue, 1998 Local
Tax Distribution. Un. Ex. 15.
At the lower end of the population
figures,
band. County data showed
larger, it was omitted because of the different way
it uses
corrections officers as an
entry level position into the sheriff's
office. The Arbitrator finds it reasonable to
exclude
County based on this
difference in utilization of corrections
officers by the employer.
the overall picture of
comparability. The geographic proximity
of
comparators.
counties are located on the
I-5 corridor.
assessed property valuation is
within the 50% band to Thurston
County. The Arbitrator finds the inclusion of a rural
county on
the list of comparators
provides an appropriate balance to the use
of an urban county, such as
above-cited reasons, the
Arbitrator concludes the appropriate group
of six comparators are as
follows:
County Population
Kitsap 229,400
Whatcom 157,500
Thurston 199,700
The six above-named counties will provide an acceptable
aid in reaching a decision on
the four issues before this
Arbitrator in the present
case.
ISSUE 1: ARTICLE II.
SECTION 5 - CONTRACTING
A. Background
The 1996-97 Collective Bargaining Agreement is silent on
the subject of contracting out
of bargaining unit work. An issue
arose during the term of the
contract when an inmate was required
to be hospitalized at
required 24-hour
security. Because the inmate was
expected to be
hospitalized for an extended
period of time, the County hired a
private contractor to provide
security for the inmate.
The
subcontracting of bargaining
unit work. The parties agreed to
resolve the grievance by making it a subject for
contract
negotiations. The proposals
offered by both parties are similar in
that they recognize there may
be a legitimate need to contract out
work under given
circumstances.
B. The
The
Article II, Section S - Contracting.
The parties recognize the right of the County
to contract security
details which are
required for inmates
outside of Thurston
County.
The
necessary to protect the
bargaining unit. If the County is allowed
a free hand to contract out
bargaining unit work, it undermines the
very premise of the public
sector bargaining law.
Moreover, the
Agencies that provide security
details are not necessarily fully
trained in defensive tactics
and security procedures. This lack of
training affords inmates
outside of the facility a chance to
receive contraband which can
be dangerous once an inmate is back
inside the jail. It is also a security issue for the community
when private security officers
lack the proper training.
The County
offered no evidence
to support their
proposition that security
details outside the facility should be
contracted out. The County provided no cost data which would
support its position that it
needed the ability to contract out
security details such as the
one at
to save money. The
County's concern, and they
have limited their proposal to no
contracting out of security
details required for inmates inside of
County the flexibility to
contract for details that are required a
long distance away from the
facility. The
be adopted by the Arbitrator.
C. The County
The County proposed to add language to the contract which
states:
Article II, Section 5 - Contracting.
The parties recognize the right of the County
to contract security
details which are
required for inmates
outside of Thurston
County's corrections facilities.
In the view of the County, it is seeking a change in the
contract to provide for a very
limited right to contract out
bargaining unit work. The
proposal is directed at situations where
security details are required
at sites away from a Thurston County
correctional facility.
The history of this issue reveals there has been only one
occasion where the need to
contract was recognized by the County.
This involved the inmate who
was hospitalized and required 24-hour
security. The geographical location required
significant travel
over an extended period of
time, and Thurston County corrections
officers could not be assigned
to work the security detail in
Seattle without having to work
overtime to guard the inmate.
The County argues the proposal has no impact on the
integrity of the bargaining
unit work performed by employees
because corrections officers
will still be performing all security
details inside Thurston County
corrections facilities, including
the new facility to be opened
in 2001. Under-Sheriff McClanahan
testified it is unlikely
contractors could be efficiently utilized
in other details because most
details are of such a limited
duration it is not practicable
to bring in contractors to perform
the service. The potential benefits of contracting
outside
security details involve the
two primary situations where the
security is needed for a long
duration and travel time is
significant. The County submits it can efficiently provide
the
security at less cost and
without having to burden existing
corrections employees with
overtime assignments. The County's
proposal should be adopted by
the Arbitrator.
D. Discussion and Findings
Neither of the parties pointed the Arbitrator to the
contracts of the comparators
for support of their respective
positions on this issue. A review of the collective bargaining
agreements from the
comparators by this Arbitrator reveals that,
with one exception, the
contracts are silent on the subject of work
preservation and
subcontracting out of bargaining unit work.
The
Kitsap County contract
expressly grants the employer the right to
contract "any
work." Thus the comparators provide
little help in
deciding the type of language
which should be included in this
contract.
The Arbitrator finds the Harbor View case that generated
this issue favors the County's
position. However, the language
offered by the County goes far
beyond the example to allow
contracting whenever an inmate
is outside a Thurston County
corrections facility. The
Arbitrator rejects the County's proposal
as seeking too much through
its new contract language on this
subject.
The Union's proposal allows for contract security details
"for inmates outside of
Thurston County." In the judgment
of this
Arbitrator, the Union's
proposal adequately addresses the County's
express concerns about
controlling costs and overtime when a
security detail is required
for an extended period of time outside
of Thurston County. Security details inside the County are more
likely to be of a limited
duration and definitely would not require
the extensive travel time that
was involved in the Harbor View
situation. Therefore,
the Arbitrator will award the Union's
proposal.
AWARD
The Arbitrator orders that new language be included in
the contract to read as
follows:
Article II, Section 5 - Contracting.
The parties recognize the right of the County
to contract security
details which are
required for inmates
outside of Thurston
County.
ISSUE 2: ARTICLE IX.
SECTION 1 - WORK SCHEDULES
A. Background
Article IX, Section 1, currently reads:
ARTICLE IX
HOURS OF WORK
Section 1.
Regular Work Hours. The
normal
work day for Corrections Officers is currently
eight (8) consecutive hours of work with five
(5) consecutive days followed by two (2) days
off. Those
employees under the 9/80 schedule
would work five (5) consecutive nine (9) hour
days, followed by two (2) days off, followed
by three (3) consecutive nine (9) hour days,
followed by one (1) eight hour day, followed
by three (3) days off or four (4) consecutive
nine (9) hour shifts and one (1) eight (8)
hour shift, followed by three (3) days off,
followed by four (4) consecutive nine (9) hour
shifts followed by two (2) days off.
What the quoted provision does
is set a schedule that is
commonly referred to as a 9/80
work schedule. The 9/80 is worked
by 53 corrections officers in
the detention facilities. The County
proposed to change the
existing language to allow management to go
to a standard five eight-hour
days on and two off beginning
January 1, 2001. The new schedule alternative would coincide
with
the opening of the additional
detention facility in Thurston
County. The Union proposed to continue the current
contract
language.
B. The County
The County takes the position that its proposal should be
adopted to allow re-establishment of the standard 5/2
work
schedules of eight hours in
duration. Currently administrative
lieutenants, court officers, medical liaison
officers, inmate
service officers, and
information officers work the standard 5/2
schedule. That is a total of fifteen employees. The remaining
corrections officers in the
detention units work the 9/80 schedule.
Chief Daniels testified concerning the history of the
9/80 schedule which was
originally proposed by the County in the
initial contract negotiations
of this bargaining unit. Chief
Daniels explained that, while
the 9/80 schedule is economically
inefficient, this schedule does have advantages in
providing
additional staff to perform
necessary duties. However, Chief
Daniels and Under-Sheriff
McClanahan testified the 9/80 schedule is
a very inefficient use of
employees due to the nine-hour work day
and the resulting overlapping
coverage that is created.
The County has now determined that a standard 5/2 work
schedule is necessary and should
be included in the current
agreement. The County used
three independent consultants to review
the staffing
schedules along with
other analysis of
jail
operations. While both types of schedules result in 2,080
hours
per work year, the sheriff's office
concluded the efficiencies
gained by going to a standard
5/2 schedule far outweigh any
advantages gained by the 9/80
schedule. The corrections officers
are gaining additional days
off because the schedule allows
overlapping hours when you
cover a 24-hour day operation with three
nine-hour shifts. The resulting overlap per shift creates an
inefficiency that is very
costly and not present in the standard
5/2 schedule with eight-hour
work days.
The County next argues that four of the six comparable
jurisdictions maintain a
standard 5/2, eight-hour work day schedule
for all
their corrections officers.
Thus, the comparable
jurisdictions do not maintain
work schedules with overlapping hours
in the work day as Thurston
County presently is required to do
under the Collective
Bargaining Agreement. The Arbitrator
should
adopt the County's proposal in
order to bring it into line with the
comparable jurisdictions.
The Union challenged the proposal as illegal because it
had an effective date of January
1, 2001. The effective date would
be outside
the period covered by the 1998-2000
Collective
Bargaining Agreement. According to the County, in order to
complete the shift bidding and
have the schedules in place for the
move into the new facility, it
is absolutely essential for those
bids to be effective January
1, 2001. Accordingly, the County
requests the Arbitrator
recognize the shift bidding process which
is in effect in its current
contract, and adopt the County's
proposal as written.
The County also argues that the Union never raised the
illegality argument prior to
the hearing. As such, the Union
should be barred from relying
on this argument to now try and
discredit the county's entire
proposal. To raise a new position in
arbitration is clearly
recognized as an unfair labor practice.
In
the event the Arbitrator is
convinced the January 1, 2001, date is
questionable, the County requests the effective date in the
County's proposal merely be
modified to December 31, 2000, the last
day of the Collective
Bargaining Agreement subject to this interest
arbitration.
C. The Union
The parties stipulated
that the duration
of the
Collective Bargaining
Agreement before the Arbitrator runs from
January 1, 1998, through
December 31, 2000. The County's proposed
schedule change would take
place January 1, 2001. The County's
proposal to take effect
January 1, 2001, would make it effective
after the term of the current
contract has expired. It either
extends the term of the
contract beyond the three years or
automatically renews at least
this Article beyond the term of the
contract. The Arbitrator would be awarding an unlawful
contract
provision if he adopted the
County's proposed effective date of
January 1, 2001. Collective bargaining agreements in the state
of
Washington can only legally be
agreed to for a period not to exceed
three years. The County's proposal would bind the parties
during
the next contract term without
the chance to negotiate for that
term over this subject.
Turning to the
merits of the proposal,
the Union
maintains the County has the
burden of proof of establishing the
need for a change in the
current language. The Union submits the
County has not met its burden
of proof to make the change.
The Union notes that it was the County who originally
proposed a 9/80 work schedule
in 1992. The County convinced the
members of this bargaining
unit that this schedule would be
beneficial to both the County
and the employees. The numerous
justifications for the
schedule change provided by the County were
that all staff would receive
three-day weekends every other week,
establish schedules,
overlapping shifts which would create time on
the clock for routine
shakedowns, morning cleanup and inspection,
medical and dental transports,
court transport and releases, inmate
disciplinary hearings,
management team meetings, shift briefings,
training, and classification
activities. Un. Ex. 5. The Union
submits the 9/80 schedule has
proven to be an efficient and
effective system for
scheduling corrections officers which has been
good for morale.
Regarding the studies performed by the consultants,
Daniels admitted on
cross-examination that none of the studies
recommended that the 9/80
schedule was less efficient than others.
They were inclusive and stated
there were many criteria that needed
to be evaluated for a more
efficient facility and its staffing.
The studies did not address
how the duties now performed at the
overlapping shifts would be
performed without such overlap and
extra staffing for a period
each day with a 5/2 schedule change.
Chief Daniels also conceded
that in the proposed 5/2 schedule no
one would ever receive a
weekend off. The problem with the studies
is they did not address the
reality of the fact that the facility
rarely runs on a minimum
staffing level because of absences and
scheduling at the minimum
levels.
The Arbitrator should reject the County's proposal
because it failed to meet the
burden of establishing a need for the
proposed schedule change
initially offered by the County in 1992.
The experience of the unit is
that the 9/80 schedule has benefitted
both the facility and its
employees. Finally, the County's
proposal to take effect
January 1, 2001, would be illegal under
Washington law. The Arbitrator should reject such a proposal
and
maintain the status quo of the
9/80 schedule for the term of this
Agreement.
D. Discussion and Findings
The starting point for review of this issue is to
recognize the fact that the
9/80 schedule was implemented as a
result of a County proposal in
1992. The County touted the
numerous advantages of the
9/80 schedule to the employees. Un.
Ex. 5. The employees agreed with the County and the
9/80 schedule
was adopted and included in
the Collective Bargaining Agreement.
The evidence shows a 9/80 work schedule has provided
numerous advantages for both
Thurston County and the employees.
While the County argued
greater efficiencies could be attained by
moving to a 5/2 work schedule,
the Arbitrator finds the County's
evidence was not compelling
enough to make such a significant
change in a successful
program. The relatively new 9/80 work
schedule should be allowed to
continue for the duration of this
contract. The work schedules found in the comparables
argue in
favor of a 5/2 schedule.
However, they do not compel that Thurston
County move to an identical
work schedule. Thurston County has
employed a work schedule
proposed by the County and agreed to by
the Union. The Arbitrator finds the County failed to
produce
sufficient evidence to change
a work schedule that has produced
benefits for both parties.
The Arbitrator is not holding that future changes in the
work schedule might not be
warranted. However, these changes
should be left for future
negotiations. With this contract
expiring on December 31,
2000, the parties will have
the
opportunity to revisit this
issue in a relatively short period of
time. At this time the work schedule can be
explored in the
context of additional
experience with the 9/80 schedule and
evaluation of how it fits into
the opening of the new corrections
facility. The Arbitrator agrees that the proposal as
written by
the County with an effective
date of January 1, 2001, would be
improper. The Arbitrator has no authority to award a
contract
provision that would become
effective outside of the term of the
Collective Bargaining
Agreement that is
subject to this
arbitration. It is true that the Arbitrator could cure
this
problem by modifying the
County's proposal. However, I am
unwilling to do so based on
the above-stated reasons.
AWARD
The Arbitrator rejects the County's proposal and orders
that the current language
found in Article IX, Section 1, be
continued unchanged.
ISSUE 3: POLICY 356 - MINIMUM
STAFFING
A. Background
TCCF Policy 356 covers the subject of minimum staffing.
Policy 356 is a County
generated document to guarantee that minimum
staffing requirements are
maintained in the detention facilities.
At issue in this case is
Section 4.0 of the Policy which
establishes the procedures by
which vacant slots are covered for
corrections officers and
master control operators. Master control
operators are not members of
this bargaining unit.
The contract is
silent on the subject of minimum
staffing. What the dispute involved in this issue
centers around
is the use of corrections
officers to cover for master control
officers during their breaks
and lunch periods. Union witnesses
testified corrections officers
covered for master control officers
on a daily basis. There is some disagreement between the
parties
over whether the corrections
officers cover for master control
operators on a voluntary basis
or are directed to do so by
management.
The Union seeks to have the reference to corrections
officers deleted
from Policy 356
in Section 4.0.2.b
and
Section 4.0.6. With these changes, the Union asks the
Arbitrator
to incorporate Policy 356 into
the Collective Bargaining Agreement.
The County would continue
Policy 356 as an employer document
without its placement into the
Collective Bargaining Agreement.
B. The County
The County maintains the Arbitrator's role on Policy 356
and Policy 357, which is the
subject of Issue No. 4, is solely to
decide whether the policies
are appropriate as written, and as
maintained by the County, or whether the policies should be
modified to support the
Union's position. According to the
employer, the policy issues
are properly before the Arbitrator
pursuant to RCW 41.56.440.
Policy 356 was certified for resolution
through interest arbitration
by PERC. Thus, it is clear there is
statutory and
administrative authority which
recognizes the
Arbitrator's authority to
resolve disputes which are beyond mere
contract language.
The parties agreed to negotiate the parties' policies as
part of contract negotiation
which ultimately reached impasse and
were certified for interest
arbitration. No contract language was
ever proposed by the Union to
address the subjects covered in
Policy 356.
The issue in negotiations was whether the County could
force corrections officers to
work overtime in master control. The
evidence offered at the
hearing revealed the County does not force
corrections officers to work
in master control. The County allows
corrections officers to
volunteer to work in master control. The
County submits this has been
the past practice of the employer for
at least ten years.
The County takes the position that the past practice
demonstrates the use of
corrections officers to cover for master
control on a voluntary basis
does not in any way harm the integrity
of the bargaining unit. In the view of the County, it grants a
significant benefit to the
members of the Union and affords them an
opportunity to earn additional
income.
The County is also concerned with the Union's attempt to
expand the scope of Policy 356
in arbitration beyond any issues
which are related to
negotiations and certified for arbitration.
The testimony before this
Arbitrator revealed that the concern
raised by the Union during
negotiations centered on forcing
corrections officers to work
overtime in master control. Since
this issue is resolved by the
policy, the Arbitrator should
conclude that Policy 356 as
written is appropriate and adopt the
County's position on this
issue.
C. The Union
The Union takes the position the parties bargained over
TCCF Policies 356 and
357. They bargained to impasse and the
issues raised were certified
for interest arbitration. Thus, it is
appropriate for the Arbitrator
to make the policies part of the
contract.
The Union argues the changes to Policy 356 are necessary
to prevent corrections
officers from performing work outside of
their unit which is covered by
another bargaining agreement. The
master control work is not
certified as work belonging to the
bargaining unit of
618-CD. Both of these sections refer to
mandatory assignment of
corrections officers into the master
control work in the other
bargaining unit. Thus, the Union
properly seeks to have deleted
any reference to corrections
officers from Policy 4.0.2.b
and 4.0.6.
The evidence reveals
that on almost
every shift
corrections officers are asked
to cover master control for all of
the breaks and lunches those
employees are required to take.
Although the assignment to
master control might not be technically
ordered, Union President
Champagne testified it is an expected
assignment during the
shift. Under the circumstances by which
the
assignments are made, the
assignments of corrections officers to
cover for master control
operators must be considered mandatory.
The Union argued the County's proposal to continue
Policy 356 is unlawful. The Union reasoned that it is unlawful to
skim bargaining unit
work. Based on the above-stated reasons,
Policy 356 should be
incorporated into the Collective Bargaining
Agreement, with the Union's
proposed modifications.
D. Discussion and Findings
TCCF Policy 356 has been certified by PERC for resolution
through interest arbitration
under Washington law. The Arbitrator
has three options when
addressing an employer policy which has been
the subject of negotiation and
certified for interest arbitration.
First, the Arbitrator may
leave the policy as it is drafted by the
employer separate
and apart from the
Collective Bargaining
Agreement. Second, the Arbitrator may incorporate the
disputed
policy in
its current form
into the Collective
Bargaining
Agreement. Third, the
Arbitrator has the option to make changes in
the policy and incorporate the
policy with those changes into the
Collective Bargaining
Agreement.
One option that is not open to an arbitrator is to modify
an employer policy and leave
the policy separate and distinct from
the collective bargaining
agreement. To make such changes outside
the scope of the collective
bargaining agreement would be an
improper infringement by an
arbitrator on managerial prerogatives
to establish policies which do
not conflict with a collective
bargaining agreement. The scope of the arbitrator's authority
extends to issues covered by
the interest arbitration process. It
is only through the collective
bargaining agreement and interest
arbitration can an arbitrator
breach an employer-generated policy.
The Arbitrator finds the Union has failed to show
sufficient reasons
why Policy 356
should be modified and
incorporated into the
Collective Bargaining Agreement.
Evidence
presented at the hearing
demonstrated assignment of corrections
officers to cover for master
control opetators during their breaks
was a long-standing practice
in the detention facility. Further,
the evidence is mixed over
whether this was a mandatory or
voluntary assignment. Section 4.2.b of the Policy provides for a
voluntary system of covering
for absent master control operators
which must be utilized
first. If volunteers cannot be found,
only
then can mandatory overtime be
used to cover for vacant slots. The
evidence offered by the Union
is that the current policy and
practice has not invaded or
diminished the integrity of this
bargaining unit.
In sum, the Arbitrator holds the Union has shown no need
for the proposal to
incorporate Policy 356 into the Collective
Bargaining Agreement with the
modifications sought by the Union.
Therefore, it will be the
award of the Arbitrator to maintain the
status quo of Policy 356.
AWARD
The Arbitrator awards the Union's proposal on Policy 356
should not become a part of
the Collective Bargaining Agreement and
Policy 356 should continue
unchanged as a matter of County policy.
ISSUE 4: POLICY 357 VACATIONS AND LEAVES
A. Background
The stated purpose of TCCF Policy 357 is to provide a
"systematic procedure
for the requesting
and accounting of
vacation, sick, leave time and
personal holidays." County Exhibit
12, 4.0(5) (A) of Policy 357
speaks to the issue of compensatory
time as follows:
Employees requesting to take comp time shall
do so in advance by submitting a written
request to their immediate supervisor. The
request shall be submitted at least five days
in advance of the requested date and the
supervisor shall respond within five days of
the receipt of the request. In determining
whether to approve the reguest,
the supervisor
shall consider operational reasons, including
hardship to other employees. An example of an
operational reason for denying a comp time
request is that minimum staffing would not be
met.
Emphasis
added.
In Article IX, Section 4 of the Collective Bargaining
Agreement the subject of
Compensatory Time is covered by language
which states:
Section 4.
Compensatory Time. At the
time
overtime is worked,
the employee has the
option to request either overtime compensation
or compensatory time.
It shall normally be
the practice to pay overtime in money during
the pay period following the pay period in
which overtime is worked.
However, with the
mutual agreement of
the employee and the
Sheriff, or designee, compensatory time off
may be used for overtime and court appearance
time. Whether or not compensatory time off is
allowed to accrue, in lieu of overtime pay,
shall be at
the sole discretion
of the
Employer.
If allowed, compensatory time shall
be accrued at the rate the actual hours for
which overtime payment otherwise would have
been made. In no
event shall an employee
accumulate a balance of more than sixty (60)
hours of compensatory time. The Employer
shall buy down all accumulated compensatory
time in excess of forty (40) in their accrual
bank as of October 31 of each year (to be
included
in the employees'
November 30
paychecks).
Emphasis
added.
The above quoted provision
focuses on the subject of accrual of
leave rather than use of
compensatory time.
The dispute in this issue concerns the Union's claim
employees are not able to
schedule compensatory time. Part of the
problem in scheduling
compensatory time is seen by the Union as
coming from Policy 357. The County sees the issue as one of
meeting minimum standards
without calling in employees at overtime
rates.
B. The Union
The Union takes the position the evidence demonstrates
that corrections
officers are not
able to schedule
their
compensatory time. According to the Union, Policy 357 places a
road block in the way of
employees seeking to utilize compensatory
time off. The Union maintains the policy should be
modified to
include a provision that the
need to use overtime to meet minimum
staffing as a result of a
request to schedule compensatory time
should not be a valid reason
to deny the request.
The practice in effect and based on Policy 357 is to deny
employees' use of compensatory
time if the granting of compensatory
time will take the facility
below minimum staffing levels. The
employer's denial of
compensatory time is based on the criteria of
refusing to allow the time to
be taken, if overtime is required to
cover a shift, means there is
little or no opportunity to use
compensatory time.
Corrections
officers are allowed
to sell back
compensatory time. However, they can only sell time accrued over
forty hours. If they cannot schedule the compensatory time
off,
they are left with
compensatory time they cannot use. In
essence,
they work overtime for free.
The testimony of Corrections Officer
Downing revealed that officers
are more and more reluctant to work
for compensatory time because
they cannot take it once it is
earned. Article IX,
Section 4, addresses
the accrual of
compensatory time. However, it
does not address the utilization of
accrued compensatory
time. TCCF Policy 357 with the Union's
proposed language, should be
incorporated into the contract so that
corrections officers are able
to use compensatory time validly
earned under Article IX,
Section 4.
C. The County
The County takes the position that it is appropriate to
consider operational
reasons, including hardship
to other
employees, when making a
decision to allow compensatory time off.
A key point of this dispute is
that the Union seeks to require the
County to grant compensatory
time off even if it takes the work
unit below minimum staffing.
When minimum staffing levels are not
met, the County is placed in
the position of requiring an employee
to work overtime.
Regarding the Union's proposal, the County argues it is
absolutely irresponsible and
unreasonable for the County to be
placed in a position where they
are granting compensatory time off
to an employee which takes the
facility below minimum staffing and
results in overtime being
required. According to the County, the
inefficiencies involved in an
employee taking compensatory time
off, and replacing that time
with an employee on overtime is
inappropriate. Thus, the County submits this inefficient
approach
should not be required by
County policy.
The County next argues that Policy 357 is consistent with
Article IX, Section 4, of the
Collective Bargaining Agreement where
it provides, "Whether or not compensatory time is
allowed to
accrue, in lieu of overtime
pay, shall be at the sole discretion of
the Employer." Rather than denying compensatory time in its
entirety pursuant to the
contract, the County has attempted to come
up with
a reasonable approach
to allow employees
to use
compensatory time off.
The County maintains that its position is consistent with
the comparable jurisdictions
that have addressed the issue of
compensatory time off. All of
the contracts which have language on
the issue of utilization of
compensatory time require that it be
taken with the concurrence of
management. In addition, the
compensatory time off
provisions of the other contracts also place
limits on its use, if the
facility is taken below minimum staffing
level.
The Union has contended that Policy 357 as written
violates the Fair Labor
Standards Act. If the Arbitrator agrees
with the Union's position, he
should void Section 4.5 of the Policy
and recognize the County shall
pay overtime in cash and eliminate
any payment of compensatory
time.
For all of the foregoing reasons, the County feels the
Arbitrator should adopt Policy
357 as written by the County.
D. Discussion and Findings
The parties are directed to the Arbitrator's discussion
of policy matters in interest
arbitration at Issue 3: Minimum
Staffing. There is a different twist in Issue 4 in
that
compensatory time is the
subject of express contract language.
In
resolving this issue, the Arbitrator must consider both the
Collective Bargaining
Agreement and Policy 357. Article IX,
Section 4, does not compel the
County to allow corrections officers
to accrue compensatory
time. The employer retains the right to
decide, "Whether or not
compensatory time off is allowed to accrue,
in lieu of oyertime
pay, shall be at the sole discretion of the
Employer." The County has exercised its discretion to
allow
employees to accrue
compensatory time pursuant to the agreed upon
language in Section 4.
Section 4 limits the amount of compensatory time which
can be accrued by a
corrections officer to sixty hours. If
a
corrections officer cannot
utilize the compensatory time, Section 4
requires the County to buy
down all compensatory time in excess of
forty hours. When an employee cannot schedule the accrued
compensatory time from one to
forty hours, they lose the value of
the benefit.
Both parties have made valid points in support of their
respective positions. The County correctly asserts it must
maintain its minimum staffing
levels and avoid paying overtime to
provide coverage for an
employee using compensatory time off.
While it is true the right to
accrue compensatory time in lieu of
overtime is discretionary with
the County, the County has elected
to allow the accrual of
compensatory time. However, the contract
is silent on the use of
accrued compensatory time. Policy 357
fills the gap on the
utilization of compensatory time.
Generally,
Policy 357 places considerable
discretion with management in
deciding, if and when
compensatory time will be allowed.
The Union is correct that officers should not be faced
with forfeiture of accrued
compensatory time because management
will not or is unable to
schedule sufficient time to use up the
accrued compensatory
time. Part of the problem in this case
is
that the staffing level at the
detention facility makes it
difficult to maintain minimum
staffing without the use of overtime.
The payroll data does not
entirely support the Union's claim
compensatory time was not
being scheduled. Co. Ex. 7. In 1998,
1,168.75 hours of compensatory
time was taken by corrections
officers, or an average of
approximately 19 hours per employee.
However, the fact compensatory
time is being used does not address
the forfeiture issue.
A review of the contract language from the comparator
contracts provides some
assistance in resolving this dispute. All
of the contracts which provide
for compensatory time place a limit
on the amount of compensatory
time which can be accrued, and
provide for some form 9f
payment for unused compensatory time. In
addition, the contracts
require the use of compensatory time to be
scheduled with the mutual
consent of the employee and employer.
The Arbitrator is convinced that Policy 357 should remain
unchanged in order to allow
management sufficient flexibility to
control the use of
compensatory time in a difficult situation.
At
the same time, corrections
officers should not suffer a forfeiture
of accrued compensatory time
because of scheduling difficulties.
To alleviate this problem, the
Arbitrator will modify Article IX,
Section 4, to require the employer to buy down
accumulated
compensatory time to thirty
hours. The figure divides the maximum
accrual rate which must be
bought down by one-half. By requiring
the employer to buy down an
additional amount of the accumulated
compensatory time, additional
incentives will be placed on
management to schedule
compensatory time under Policy 357.
AWARD
The Arbitrator awards that Article IX, Section 4, shall
be modified to read:
ARTICLE IX
HOURS OF WORK
Section 4.
Compensatory Time. At the
time
overtime is worked,
the employee has the
option to request either overtime compensation
or compensatory time.
It shall normally be
the practice to pay overtime in money during
the pay period following the pay period in
which overtime is worked.
However, with the
mutual agreement of
the employee and the
Sheriff, or designee, compensatory time off
may be used for overtime and court appearance
time. Whether or not compensatory time off is
allowed to accrue, in lieu of overtime pay,
shall be at
the sole discretion of the
Employer. If allowed, compensatory time shall
be accrued at the rate the actual hours for
which overtime payment otherwise would have
been made. In no
event shall an employee
accumulate a balance of more than sixty (60)
hours of compensatory time. The Employer
shall buy down all accumulated compensatory
time in excess of thirty (30) in their accrual
bank as of October 31 of each year (to be
included in the
employees' November 30
paychecks).
Respectfully submitted,
Gary L. Axon
Arbitrator
Dated: July 19, 1999