Teamsters
And
City
of
Interest
Arbitration
Arbitrator: Jack T. Cowan
Date
Issued:
Arbitrator:
Cowan; Jack T.
Case #: 13128-I-97-00281
Employer:
City of
Date Issued:
In the matter of interest
arbitration
between
CITY OF
AND
TEAMSTERS
INTEREST ARBITRATION OPINION AND AWARD
PERC CASE 13128-I-97-281
Appearances:
CITY OF
TEAMSTERS
In the matter of interest
arbitration
between
CITY OF
AND
TEAMSTERS
OPINION OF THE NEUTRAL CHAIRMAN
PROCEDURAL MATTERS
In accordance with RCW 41.56.450, an interest arbitration
hearing involving certain
uniformed personnel of the City
of
three persons. The City of
Union, Local 760, appointed
Mark L. Rogstad as its designee on the Panel.
Arbitrator Jack T.
Cowan was designated as the
Neutral Chairman of the Panel under RCW 41.56.450(1) and WAC
391-55-210(2). The hearing was
held in Moses
employer was represented by
City Manager Joseph K. Gavinski. The union was
represented by
Kenneth J. Pedersen of the law
firm of Davies, Roberts & Reid. The testimony of witnesses was
taken under oath and the
parties presented documentary evidence.
The parties agreed upon the submission of post-hearing
briefs, and agreed to waive the
statutory requirement that the
interest arbitration award be issued within 30 days following the
conclusion of the hearing. It
was agreed that the Neutral Chairman would present a draft of his
Award to the employer-appointed
and union-appointed members of the Panel, and then would issue
his decision after receiving
their input. The Neutral Chairman received the parties' briefs on March
17, 1998. The Neutral Chairman
distributed an initial draft of his Opinion and Award to the other
Panel members, and met with the
other Panel Members on
APPLICABLE STATUTORY
PROVISIONS
RCW 41 .56.465 sets forth criteria which must be considered
by an arbitrator in deciding the
controversy:
RCW
41.56.465 Uniformed personnel -- Interest arbitration panel--
Determinations--Factors
to be considered. (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 like personnel of
like employers of similar size on the west coast of the
(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....
The two statutory provisions cited within RCW 41 .56.465
contain the following provisions
pertinent to this proceeding:
RCW
41.56.430 Uniformed personnel-LegisIative
declaration. The
intent and purpose of this I 973 amendatory act is to
recognize that there exists a
public policy in the state of
means of settling their labor disputes; that the
uninterrupted and dedicated service of
these classes of employees is vital to the welfare and
public safety of the state of
should exist an effective and adequate alternative means
of settling disputes.
RCW
41.56.030 Definitions. As used in this chapter:
(7) "Unformed
personnel" means: (a)(i) Until
enforcement officers as defined in RCW 41 .26.030
employed by the governing body
of any city or town with a population of seven thousand
five hundred or more and
law enforcement officers employed by the governing body
of any county with a
population of thirty-five thousand or more; (ii) beginning
on July 1 , 1 997, law
enforcement officers as defined in RCW 41 26.030 employed
by the governing body
of any city or town with a population of two thousand
five hundred or more
According to population data
compiled by the Office of Financial Management of the State of
ISSUES
The union represents 21
uniformed employees in the employer's Police Department. The
union and employer were parties
to a collective bargaining agreement for the period of January 1,
1995 through December 3 1 ,
1996. The parties were unable to reach agreement on a new contract,
despite their efforts in
negotiation and the assistance of a mediator. In accordance with RCW
41.56.450, the Executive
Director of the Public Employment Relations Commission certified four
issues for interest
arbitration, as follows:
I. Article
8-Employer Rights
2. Article
14 - Vacation Leave
3. New
Article - Longevity Pay
4. New
Article - Education Incentive
Those are the only issues for
determination by the interest arbitration panel in this proceeding.
COMPARABLE EMPLOYERS
In an
a list of 24 jurisdictions (12 each
in western and eastern
would rely upon in developing
comparative salary data for its exempt staff, professional and clerical
employees. In population order, the cities listed by
West were:
Jurisdiction Western Eastern Population
1.
2.
3. Bothell x 25,850
4. Pullman x 24,360
5.
6.
7. OakHarbor x 19,160
8. Marysville x 16,890
9. Mukilteo x 14,760
10. Ellensburg x 12,900
11 . Anacortes x 12,820
12.
13. Kelso x 11,870
14. Sunnyside x 11,710
15. Tumwater x 11,420
16. Enumclaw x 10,170
17. Mill Creek x 9,230
18.
19. Issaquah x 9,025
20. Cheney x 8,240
21. Toppenish x 7,765
22.
23. Clarkston x 6,810
West stated, however, that he
would rely on the 12 eastern
(which includes the City of
further stated that he would
use the same eastern
comparables in interest
arbitration.
When interest arbitration became imminent, the union
contacted West in an attempt to reduce
the list of comparable
jurisdictions. West responded that the employer would not agree to eliminate
any of the jurisdictions which
it had identified.
Acting upon West's response, the union used the same
eastern
employer had identified and
also included four western
Tumwater and Kelso) which had
earlier appeared in the total list of cities provided by the employer.
Relevant information for these
16 jurisdictions was researched by the union, and was provided at the
hearing.
At the interest arbitration hearing, the employer offered
a pared-down list of six cities as
comparables. That new list
included three eastern
Ellensburg and Wenatchee), and
three western
original list but later refused
to rely upon (Anacortes, Mukilteo and Tumwater). The employer then
contended these cities were the
most comparable to
valuation per capita, size of
police department budget, and the number of officers in their police
departments.
The arbitrators have selected a total of seven cities to
use as comparables. They include five
western
employer's list of comparables,
and all except Mukilteo had appeared on the union's list of
comparables. Population
(according to the
of comparison. The populations
of the selected cities are the closest to
Jurisdiction Western Eastern Population
OFM Rank %
Mukilteo x 15,890 43 +19.2
Ellensburg
x 13,600 45
+2.0
Anacortes x 13,460 47
+1.0
Tumwater x 12,130 50 -1.0
Sunnyside x 11,980 51 -100
Kelso x . 11,950 52 -10.4
While these seven cities may
not serve as an exact match with
of the arbitrators, offer a
reasonable and usable comparison. As emphasized by the employer, it is
difficult to find precise
comparables. Each city police department is created and structured in a
unique way. Each city has a set
of factors which determine the number of officers and the
composition or structure of the
department. Budgetary constraints are a primary factor. Priorities
of the cities can include such
items as necessity, function, appearance and efficiency. Crime rate or
criminal activity in the city
is a strong factor of consideration. A chief's persuasiveness and modus
operandi with the powers that
be may also be a factor in the size and structure of a police department.
While it may be possible to
statistically analyze and compare cities on various standards, the reasons
or rationale for the present
forms of municipal structure remain in a mist. There are an extreme
number of variables, of
unknowns which escape detection. There is no one way to structure city
administration. Personalities,
dynamics of leadership and political aspects of the area are additional
factors which enter into the
complex mass of city organization. As a purposeful avoidance of such
a labyrinth, the arbitrators
chose population as the primary factor for comparison.
DISCUSSION
EMPLOYER
RIGHTS
The parties' 1995-1996
collective bargaining agreement contained a management rights article which
read as follows:
ARTICLE 8 - EMPLOYER RIGHTS
8.01 Except as expressly limited by a specific
provision of this agreement or law,
the employer hereby reserves
and retains the exclusive right to take any action it
deems appropriate for the
efficient management of its' facilities or operations and the
direction of its work force.
8.02 The employer by not exercising any right
hereby reserved to it, or the exercise
of any such right or function
in a particular way, shall not be deemed a waiver of the
right to exercise such
prerogatives or rights in the same or some other way not in
conflict with the terms of this
agreement.
The union proposes to add
language to read, "to suspend, demote, discharge, or take other
disciplinary action against
members for just cause
The employer is subject to a state civil service law with
regard to employees in its Police
Department, and feels the
proposed language is superfluous. The union emphasizes that the civil
service commission is composed
of persons appointed by the city manager, that the current secretary
of the civil service commission
is Human Resources Director Robert West, and that both the city
manager and West are involved
in every disciplinary decision made by the Police Department. The
union further contends that the
jurisdiction of the civil service commission is limited to review of
suspensions, terminations and
reductions in rank, so that police officers have no ability to challenge
other discipline through the
civil service procedure.
The addition of "just cause" language to the
parties' contract would permit resolution of
disputes over disciplinary
matters through the grievance and arbitration procedure established in that
contract. The Legislature has
permitted, and even expressed a preference for, grievance arbitration.
See, RCW 41.56.122(2) and RCW
41.58.020(4).
At least five of the selected comparables (Anacortes,
Sunnyside) have "just
cause" language in their contracts. That language varies from city to
city, and
the Tumwater contract uses
"just cause", in a sentence which also references civil service. Just
cause,
or its equivalent, is commonly found
in collective bargaining agreements in cities throughout the
state of
The language proposed by the union shall be included in
Article 8 of the parties' collective
bargaining agreement, with one
limitation. Reflecting the availability of the statutory civil service
process to individual
employees, an election of remedies" clause shall be added to avoid
processing
the same discipline through
both the civil service and arbitration forums.
VACATION LEAVE
The parties' 1995-1996
collective bargaining agreement did not contain any language providing for
the reimbursement of employees
for unused sick leave, or a sick leave cash out. The union proposed
language, as follows:
14.10 Reimbursement of
Unused Sick Leave: Unused accumulated sick leave will
be paid as severance pay upon
voluntary termination or a reduction in force on the
following basis:
A. One hundred percent (100%) to a maximum of four hundred
eighty (480)
hours after thirty (30) years of continuous service.
B. Seventy-five percent (75%) to a maximum of four hundred
eighty (480) hours
after twenty (20) years of continuous service.
C. Fifty percent (50%) to a maximum of four hundred eighty (480)
hours after
ten (10) years of continuous service.
D. Twenty-five percent (25%) to a maximum of four hundred eighty
(480) hours
after five (5) years of continuous service.
E. Ten percent (10%) for up to five (5) years of continuous
service.
The proposed benefit is substantial:
If the employees receive 8 hours (or one day) of sick leave
accumulation per month, the 480
hour mark could be achieved in a five-year period (60 months),
assuming no sick leave usage.
The union emphasizes that all comparable jurisdictions
permit their police officers to
accumulate sick leave at the
rate of one (1) day per month of service. Some impose a cap on the
number of days which can be
accumulated, while others have no restriction. The union further
emphasizes that this employer
provides a sick leave reimbursement policy for all of its employees
who are not represented by
labor organizations. The employer responds that there are a variety of
systems among the cities which
provide sick leave cashout, which make comparisons
very difficult.
As examples, it cites one plan
that allows days over a maximum number to be traded for time off or
paid on a ratio basis; another
that allows for 25% of accumulated sick leave to be paid off upon
termination, but capped and
limited by a dollar amount based upon a minimum number of years of
service; a third plan that
allows payment of 25% of accumulated sick leave upon termination of
service after having a minimum
of 10 years of service; and yet another that allows 25% of sick leave
(up to a 30-day maximum) to be
paid upon retirement or voluntary separation. The employer also
points out that there is no
limit on the number of sick leave days which its police officers can
accumulate. In summary, the
employer reminds the Panel of the statutory obligation to compare the
wages, hours and conditions of
employment of the commissioned police officers with the wages,
hours and conditions of
employment of like personnel.
The comparables chosen by the Panel show a nearly even
split between cities which have
some sort of sick leave payout
at termination and those which do not. The fact that this employer
already provides such benefits
to its unrepresented employees overcomes resistance that would exist
if the union's proposal were
really breaking new ground in its overall workforce.
A provision for payout of 25% of unused accumulated sick
leave (to a maximum
accumulation of 480 hours) as
severance pay upon voluntary termination or a reduction in force shall
be included in Article 14 of
the parties' collective bargaining agreement.
LONGEVITY PAY
There was no language in the
parties' 1995- 1996 collective bargaining agreement concerning
longevity pay. The union
proposes addition of the following language to the contract:
11 - WAGES/OUT OF CLASS PAY
11.04 Members of the bargaining unit shall receive
longevity pay in the amount of
$11 per month multiplied by the member' 5 total years of
service commencing
with the third (3rd) year of service.
Again, the proposed benefit is
substantial: An employee with 10 years of service would receive
$110 per month, constituting a
3.5% increase from the base wage; an employee with 20 years of
service would receive $220 per
month, constituting a 7.0% increase from the base. wage.
The union states that a police officer with 20 years of
service with the city receives the same
pay as an employee with only
one year of service under the present wage structure, and that there is
no way for an employee to
attain higher pay other than by promotion to higher rank. The union
contends the comparables show
some cities pay longevity benefits, and emphasizes that those who
do not have a higher wage scale
than
language, and argues that a
clear majority of the comparables it offered do not pay longevity benefits.
The employer offered evidence
to show that, of the 42 commissioned police officers who have left
the department over the past 25
years, only 10 left to accept employment in another law enforcement
agency. The employer terms
longevity pay as "loyalty pay", and cites City of
local 2053, PERC Case
847-1-90-195 (1881), where Arbitrator Snow stated,
What the arbitration panel
failed to receive, however, was any kind of empirical
evidence detailing the benefits
to the fire department from longevity pay. This is not
to suggest that such benefits
do not exist but only that the panel received no evidence
of any benefits. The employer
submitted evidence showing that, from 1975 to 1990,
1 7 workers have left the
department. . . . Only four employees went to other fire
departments. The arbitration
panel received no objective evidence that longevity pay
would have had any significant
impact on the employment status of these former
employees. Nor should it be
overlooked that none of the comparable jurisdictions use
the percentage formula set
forth in the association's proposal.
The employer also cites City of
Revelle
stated,
[T]he evidence establishes that
longevity pay is not a useful incentive . . . . The
reasoning is well stated by the
city in its brief as follows: the issue with respect to
a longevity pay proposal is,
according to Dr. Spurlin, the city's expert, whether
there
is any "Expected
relationship between longevity and the contribution that an
individual would make to the
organization. . . , . . . however, Dr. Spurlin
concluded
that there would be no
predictable difference in job performance by a very senior fire
fighter(s) compared to others
who have reached a 'journeyman" level. An individual
with three to five years
experience is as likely to be the top fire fighter as is one with
twenty years' experience.
Arbitrator Revelle
went on to say, quoting again from Dr. Spurlin, that
his own research also
determined that longevity pay
plans do not have a positive affect on employee morale. Additionally,
the employer cites City of
deGrasse
wrote,
[ C]oncerning
longevity, there is no substantial evidence supporting a correlation
between time on the job and
increased effectiveness. Therefore, I find that a premium
or incentive on the basis of
longevity alone is not warranted in this case.
The employer contends the union
did not supply sufficient evidence concerning the benefits to the
city to justify the city paying
a longevity incentive.
The arbitrators align with the employer and the
above-cited arbitrators on this issue. The
comparables are again nearly
evenly split, but there is no local practice which tips the balance toward
the union on this issue. There
shall be no contract language on the subject of longevity.
EDUCATION INCENTIVE
There was no language in the
parties' 1995-1996 collective bargaining agreement concerning
educational incentive. The
union proposes addition of the following language to the contract:
ARTICLE 11 - WAGES/OUT OF
CLASS PAY
11.03 Members of the bargaining
unit who have attained an ''A.A.'' degree shall
receive a monthly wage
adjustment equal to two percent (2%) of their base wage.
Members of the bargaining unit
who attained a "B.A." degree shall receive a monthly
wage adjustment equal to four
percent (4%) of their base pay.
Again, the benefit is
substantial. Under the 2% and 4% benefits proposed by the union, those
officers holding an AA degree
would receive an additional $62 per month, while those with a BA
would receive an additional
$124 per month. The total monthly cost to the city for those officers who
currently have degrees would be
$868.
As with longevity, the union emphasizes that those police
officers who have degrees are paid
the same as those without
degrees. The union offered testimony that a college degree is beneficial
to police officers in the
performance of their duties, and that there is wide-spread acceptance of the
fact that police officers with
degrees are more valuable to the jurisdictions they serve. The union
contends that the addition of
the proposed education incentives will both benefit the employer (by
encouraging its employees to improve
their educations), and reward officers who improve their skills
through educational
achievement. The employer proposes no change to the current contract
language, and questions why it
should pay a premium for a degree which is unrelated to the actual
duties of its employees.
The evidence shows that a majority of the comparables
used by the Panel (including at least
Ellensburg, Centralia, Kelso,
Sunnyside and Tumwater) do have educational incentive programs for
their police officers. Most of
those cities offer a percentage incentive, with a few offering a fixed
dollar amount. Percentage
amounts vary, but the 2% and 4% amounts proposed by the union here
for AA and BA degrees,
respectively, are fairly common. This employer already encourages
educational achievement by its
employees, by paying the cost of tuition for those employees who are
pursuing relevant education.
The 2% and 4% educational incentives proposed by the
union shall be added to the parties'
collective bargaining agreement
for employees who have or obtain degrees related to police science,
law and justice, or a closely
allied field. For purposes of implementing this benefit: (1) Those police
officers currently employed by
the City of
grandfathered into the 2% and
4% educational incentive plan; and (2) the union shall be provided
with written notice of the
employer's decisions on the eligibility of any officer hired in the future
for educational incentive
benefits, and any denial of benefits shall be subject to the grievance
procedure.
AWARD
The parties shall enter into a
collective bargaining agreement effective January 1 , 1 997, containing
the following provisions:
1 . The "just cause" language proposed by the union,
with an "election of remedies" clause as
described above; and
2. A provision for payout of 25% of unused accumulated sick
leave (to a maximum
accumulation of 480 hours) as severance pay, as described
above; and
3 . The 2% and 4% educational incentives proposed by the union
shall be added for employees
who have or obtain degrees related to police science, law
and justice, or a closely allied field,
subject to the grandfather clause and new employee
procedure described above.
Issued at Olympia, Washington,
on the 15 day of December, 1998.