INTEREST ARBITRATIONS

City of Yakima

And

Washington State Council of County and City Employees, Council 2,

AFSCME, AFL-CIO, Local 1122

Arbitrator:         George Lehleitner

Date Issued:      06/26/2001

 

 

Arbitrator:         George Lehleitner

Case #:              15379-I-00-346

Employer:          City of Yakima

Union:                WSCCCE; Council 2; AFSCME; AFL-CIO; Local 1122

Date Issued:      06/26/2001

 

 

 

IN THE MATTER OF AN INTEREST                               )

ARBITRATION BETWEEN WASHINGTON                   )           OPINION AND AWARD

STATE COUNCIL OF COUNTY AND                               )

CITY EMPLOYEES, COUNCIL 2,                          )                             OF

AFSCME, AFL-CIO, LOCAL 1122                                     )

and CITY OF YAKIMA                                                        )           GEORGE LEHLEITNER

                                                                                                )

                                                                                                )           INTEREST ARBITRATOR:

                                                                                                )          

 

 

HEARING :                                                   May 3, 2001

 

BRIEFS RECEIVED:                                   May 29, 2001

 

INTEREST ARBITRATOR:                                   George Lehleitner

                                                                        4702 S.W. Scholls Ferry Rd., #334

                                                                        Portland, Oregon 97225

 

REPRESENTING                                         Otto Klein, III, Attorney at Law

CITY OF YAKIMA:

 

REPRESENTING THE UNION:                 Audrey E. Eide, General Counsel.

 

                                                            ii

I.          INTRODUCTION

 

            The undersigned was selected as Interest Arbitrator by WSCCE,

Local 1122 (Union) and the City of Yakima (City). The selection

was made in accordance with RCW 41.56.492 and the Impasse

Resolution Rules embodied in Chapter 391.55 of the Washington

Administrative Code (WAC) .

 

            A hearing was held on May 3 , 2001 in Yakima, Washington before

an arbitration panel consisting of Neutral Arbitrator George

Lehleitner and partisan arbitrators Anthony R. Menke for the City

and Jon Stables for the Union. The City was represented by Otto

Klein, III, Attorney at Law. The Union was represented by Audrey

B. Eide, its General Counsel. Both sides were afforded a full

opportunity to make oral and written presentations and submit post

hearing briefs. Simultaneous briefs were received on May 29, 2001,

and the hearing was closed on that date.

 

II.        ISSUE

 

            The only issue in dispute is the Union's proposal to amend

Article XI of the collective bargaining agreement.

 

III.       BACKGROUND

 

            The City of Yakima maintains its own transit service. The

Union represents a bargaining unit of employees working at Yakima

Transit and has negotiated a series of collective bargaining

agreements describing their terms and conditions of employment.

(Exhibit U-4).

 

            Since mid 2000, the Union and the City have been engaged in

the process of bargaining a new collective bargaining agreement

covering transit employees. The parties were able to resolve all

issues except for the Union's proposal with respect to contracting

out. After mediation of the contracting out issue proved

unsuccessful, the Washington Public Employment Relations Commission

(PERC) declared an impasse and certified the matter for

arbitration. (Exhibit U-2). As previously indicated, the matter

was heard before the arbitration panel on May 3, 2001.

 

            A brief summary of the factual background of this dispute may

be helpful. Yakima Transit operates nine (9) bus routes in the

City of Yakima. The Transit agency also provides para-transit

services (primarily for the disabled) through a subcontract. The

bargaining unit of approximately forty (40) employees includes.

drivers, dispatchers, service workers, route supervisors and

customer relations coordinators (Exhibit C-1).

 

            In 1997 a citizen's task force was created to explore ideas

for making transit operate more efficiently. After receiving input

from the public, from the transit staff and bargaining unit drivers

over an extended period of time, the task force developed a number

of recommendations. These recommendations included purchasing

smaller buses, redefining the para-transit eligibility pool,

increasing fares, doing away with Dial-A-Ride service on Sundays,

eliminating a route and subcontracting Route 3 on an experimental

basis.¹ Some of the task force recommendations were adopted;

others were rejected or modified.²

^{____________________________}

¹. Testimony of Wayne Parsley and Mary Place.

            The testimony of Mr. Parsley, a bus driver with the City,

suggested the recommendation to subcontract Route 3 on an

experimental basis was flawed because the task force relied on

faulty data supplied by a high school math class. However, the

credible evidence established that the ridership on Route 3 was

among the lowest of any route operated by the transit service.

(Testimony of Chris Waarwick).

 

². Testimony of Mary Place.

 

            With respect to the Route 3 recommendation, the City opted to

contract this route out to a private company on an experimental

basis. There were some initial problems with the service provided

by the private contractor, but from the City's perspective many of

these problems have since been ironed out. Consequently, the

contract has been extended several times and the City is currently

in the process of undergoing an analysis to determine what to do

with Route 3, i.e., eliminate it entirely, sub-contract it to a

private company or resume Route 3 as a service staffed by Yakima

Transit drivers (Exhibit C-11, pages 16 and 17).³

^{________________________________}

³. Testimony of Chris Waarwick.

 

            As a result of contracting out Route 3 on an experimental

basis, two (2) full time and a 2 5 temporary Operator positions

were eliminated in the budget. [Exhibit U-22, page 2 ). However,

no one was laid off because all of these positions were vacated

either by retirement or attrition.⁴  Not surprisingly, the Union

objected to the decision of the Council to contract out Route 3 to

a private company on an experimental basis. The end result of that

objection is the Union's proposed amendment to "Article XI -

Contracting Work." The Union's proposal is intended to protect

bargaining unit work.

_____________

⁴. Testimony of Wayne Parsley.

 

IV. POSITION OF THE PARTIES

 

            A.        Current Contract Language

 

                        Article XI of the current Contract states:

 

                        "Article XI - Contracting Work

 

The City agrees that no permanent employee shall be laid

off as a direct result of the City contracting work

currently done by City Employees. The City however,

retains the right to contract work as deemed desirable or

necessary by the City and reassign employees who might

otherwise be laid off as a result thereof. The City

further retains the right to lay off employees at the

discretion of the City, due to lack of funds."

 

            B.        The Union

 

                        The Union proposes to amend Article XI to read as

                        follows:

 

                        Article XI. Contracting Work.

 

Effective January 1, 2000, the City agrees that no

employee shall be laid off nor any existing budgeted

position eliminated as a direct result of the City’s

contracting out work currently performed by bargaining

unit employees. The City, however, retains the right to

continue currently contracted out work and to contract

out any positions or services created in the future for

which contracting out is deemed desirable or necessary.

The City further retains the right to lay off employees,

at its discretion, due to the lack of funds.

 

                        The Union’s arguments are summarized as follows:

 

                        (1) The criteria set forth in the Public Employee

Collective Bargaining Act (PECBA) are controlling. They

are: (a) the constitutional and statutory authority of

the employer; (b) stipulations of the parties; (c)

compensation package comparisons, economic indices,

fiscal constraints, and similar factors determined by the

arbitration panel to be pertinent to the case; and (d)

such other factors not confined to the foregoing, which

are normally or traditionally taken into consideration in

the determination of wages, hours and conditions of

employment.

 

                        (2 ) The legislature substituted interest arbitration for

the right to strike as the sole means of resolving

impasses between employers and unions involved with

public transit. It follows that the arbitration process

must serve as an adequate and effective alternative to

the right to strike.

 

                        (3) Arbitration in the context of public transit must be

viewed as an extension of the bargaining process. As

Arbitrator Snow stated in City of Seattle (Snow 1988) ; "a

goal of interest arbitration is to induce a final

decision that will, as nearly as possible, approximate

what the parties themselves would have reached had they

continued to bargain with determination and good faith."

The Union's proposal reflects this approach.

 

                        (4) The comparable jurisdictions offered by the Union are

reasonable and should be adopted by the arbitration

panel. In this regard the criteria used by Union Staff

Services Director John Cole to develop a list of

comparables was appropriate. More specifically, Cole

relied on population and to a lesser extent revenues and

geographic proximity. These same criteria have been

routinely used by Interest Arbitrators in the State of

Washington to develop appropriate comparables.

Conversely, the City failed to offer any comparables to

support its position. Under these circumstances, the

arbitration panel is bound to rely on the Union's

comparators.

 

(5 ) The City's contention that the Union's comparators

should not be considered because they were not presented

to it prior to arbitration should be rejected. First,

comparable jurisdictions are routinely considered by

Interest Arbitrators in arriving at an award. Second,

the testimony of Tom Barrington established that a list

of comparables was presented to the City when the parties

first went to mediation.

 

(6) The Union's proposal is designed to protect

bargaining unit work. Throughout the bargaining process

the City has taken a hard line arguing that the Union's

proposal is not negotiable because it preempts the City's

legislative authority. (Exhibit U-23). The City also

contends that it is facing fiscal constraints and thus

needs more flexibility. However, no nexus between hard

times and the proposals was shown. The reality is that

there is no such nexus because the Union's proposal does

not prohibit contracting out unless people or positions

are being eliminated.

 

(7 ) The City also offered an alternate proposal in the

event the arbitration panel decided to change the status

quo. The problem with the City’s alternate proposal is

that it is contrary to Washington law. Under Washington

law, if the parties are unable to negotiate a resolution,

they have the right to mediation and interest

arbitration.

 

(8) The Union’s proposed language is justified because

the City has already contracted out one of its routes,

i.e., Route 3 , resulting in a net loss of driver

positions. The new language is needed to protect the

bargaining unit from further loss of positions in the

event the City decides to contract more bargaining unit

work.

 

            C.        The City

 

                        The City proposes to retain current contract language.⁵

                                ^{_____________________}

                                ^{5.          By} letter dated April 25, 2001, the City offered alternate

language in the event the arbitration panel decided to modify the

status quo. However, both the City and the Union have expressed

a preference for existing contract language over that contained

in the City's alternate proposal.

 

            Inasmuch as both parties expressed a preference for current

contract language over the City's alternate proposal, the latter

                        will not be considered by the arbitration panel.

                                ^__________

 

                        The City’s arguments are summarized as follows:

 

(1) RCW 41.56.492 sets forth the criteria the arbitration

panel must consider. These include the constitutional

and statutory authority of the employer; stipulations of

the parties; compensation package comparisons, economic

indices, fiscal constraints and similar factors

determined to be pertinent and such other factors

traditionally considered in interest arbitration

proceedings.

 

(2) Interest arbitrators have stated that in arriving at

an award, they must consider the statutory factors and

strive to arrive at an award that is framed by the

negotiations process. Stated differently, interest

arbitration should be viewed as an extension of

bargaining and the arbitrator should, as nearly as

possible, approximate what the parties themselves should

have achieved through good faith bargaining.

 

(3 ) It is widely recognized that a party seeking to

change existing contract language has the burden of

establishing why new language is needed.

 

(4) It is improper and inappropriate for a party to bring

up new theories at the arbitration hearing that were not

previously raised in bargaining. However, that is

precisely what happened in this case. More specifically,

the credible evidence established that during

negotiations, including mediation, the Union failed to

disclose it was relying on any set of comparables. The

Union's stance in this regard was in stark contrast to

that of the City's negotiating team, which made it clear

from the beginning, that its financial health was a key

component of its position. Under these circumstances,

the arbitration panel should not consider the

comparability data presented by the Union.

 

(5) It is undisputed that the current language with

respect to contracting out has been in the collective

bargaining agreement for many years. In fact, that same

language is still in the collective bargaining agreement

covering the general unit represented by AFSCME. The

reason this language has remained in the applicable

collective bargaining agreements for many years is that

it strikes a reasonable balance between the interests of

the employees and those of the employer. More

specifically, the interests of the bargaining unit

employees are protected because the City is prohibited

from contracting out if it would result in the layoff of

a bargaining unit employee. On the other hand, the

current language gives the City the flexibility it needs

to subcontract work so long as no bargaining unit

employees are laid off.

 

(6 ) John Cole, the Union's Director of Staff Services,

sought to contrast the current language with some other

contracts containing no contracting out language. A

fundamental flaw in Mr. Cole's agreement is that in those

jurisdictions the employer is free to pursue the

subcontracting of bargaining unit work even if it results

in layoffs because there is no contractual prohibition

the union can rely on to prevent such layoffs from

occurring.

 

(7 ) Under Washington law the arbitration panel must

con side r "fiscal constraints" in making its

determination. Suffice it to say, the City of Yakima is

faced with very difficult economic conditions. These

include a very high unemployment rate of 14%, a heavy

dependence on sales tax revenues to fund transit, an

extremely high poverty rate and a general economic

malaise in the local community. The City is working very

hard to maintain transit service at current levels, but

clearly it is in no position to agree to language that

would effectively freeze bargaining unit positions.

Simply stated, the current contract language whereby the

City has the right to subcontract but only if no

bargaining unit employees are laid off provides the

minimum flexibility required by management and a

reasonable protection for employees. It should be

retained.

 

(8) The Union's proposal is fraught with uncertainty.

Without question, contract language should be clear and

unambiguous. The Union's proposed language does not pass

this fundamental test. For instance, it is unclear

whether there would be a violation under the Union's

proposed language if and when positions are left vacant

at or about the same time a subcontract is undertaken.

The end result in such a situation would likely be

protracted litigation that would not serve the legitimate

interests of either side.

 

(9) As previously indicated, the comparability data

offered by the Union should not be considered by the

arbitration panel because no such data was previously

discussed with the City. Moreover, the methodology used

to select the Union’s list of comparables is suspect. In

this regard, the Union‘s comparables are drawn from a

wide range of population (i.e., from 55,000 to 155,000)

that covers numerous jurisdictions other than those

selected, but no explanation was offered as to why or how

they were excluded. It is also significant that the

Union failed to take financial conditions into account in

coming up with a list of comparables. Finally, the five

(5 ) comparable jurisdictions offered by the Union in

arbitration were not even the same ones allegedly

                        presented by Mr. Barrington in mediation.

 

(10) Even if the Union’s proposed comparables were taken

into account by the arbitration panel, they would not

support its proposal. Significantly, not one of the

comparator contracts seeks to restrict subcontracting in

the way the Union has proposed. If anything, the Union’s

comparability data show that there are a number of

legitimate contractual approaches to subcontracting. The

current contract language, which has stood the test of

time, is just such an approach.

 

(11) The City readily acknowledges that it is committed

to protecting its ability to determine the number of.13

employees that will perform transit service. Clearly,

staffing levels are at the heart of management's

governance and prerogative. The Union' s proposed

language is not acceptable because it intrudes into the

staffing area by limiting the City's ability to eliminate

unfilled positions. As shown at hearing through the

credible testimony of City Manager Zais, all open

positions are carefully reviewed to determine whether or

not they should be filled given the difficult financial

condition of the City. Any proposal that even arguably

limits the City's ability to do so creates a serious

problem for management.

 

            D.        Opinion

 

                        The current contract language balances the legitimate

interests of both sides by providing that no employees shall

be laid off as a direct result of bargaining unit work being

contracted out. What follows is an application of the

statutory criteria to the relevant facts.

 

                        1.         An Overview

 

            As the City's counsel correctly observes, when a

party seeks to change existing contract language, it is.14

incumbent upon them to come forward with compelling

reasons to justify the proposed change. This is

particularly true where, as here, the language has been

in the contract for many years and there has been no

showing of problems with its application.

With respect to the relevant factors to be

considered, it is apparent that the city relied primarily

upon fiscal constraints and a resulting need for

flexibility to justify its position while the Union

relied primarily on comparability data. Consequently,

the focus of this analysis will be on these same factors.

 

                        2.         Fiscal Constraints

 

            The City contends the current contract language

strikes a reasonable balance because while it reserves

unto the City the right to subcontract work and reassign

employees, if necessary, it also protects bargaining unit

employees by providing that no permanent employee shall

be laid off as a direct result of subcontracting.

According to the City, it must have, at a minimum, the

flexibility contained in the current contract language

due to fiscal constraints. From the City's perspective,.15

the Union’ s proposed language is entirely unacceptable

because it would effectively do away with its inherent

management prerogative to eliminate positions in bad

economic times. The City argues further that the Union’s

language is unclear and would likely result in protracted

litigation in the event management decided not to fill

vacant positions.

 

            The Union‘s simple response is that the City failed

to establish a nexus between its (the Union’s) proposal

and an unacceptable lack of flexibility in hard times.

 

            The City‘s arguments are more persuasive. First,

there has been no showing that the current contract

language, which has been in the contract for many years,

is inequitable or inadequate. To the contrary, even

though several positions were eliminated when Route 3 was

contracted out on an experimental basis, no one was laid

off. Stated differently, a reasonable balance was struck

whereby the City had the flexibility to contract out a

route for economic reasons but no bargaining unit

employees were laid off nor were any drivers reassigned.

Second, the City‘s evidence established that in fact it

is facing severe fiscal constraints and needs the.16

flexibility contained in the current contract language.

As the City's counsel correctly observes, the Union's

proposed language would, if adopted, effectively prevent

it from exercising its prerogative to deploy the work

force any time work is contracted out.

 

                        3 .        Comparability Data

 

                                    As previously indicated, the Union relies primarily

                        on comparability data to justify its proposal.

 

                                    The Union's reliance on contract language from its

proposed list of comparator jurisdictions is unwarranted

for a number of reasons. First, as a practical matter,

comparability data is generally more helpful in analyzing

economic proposals. What the comparability language

offered by the Union basically shows is that even among

the five (5 ) jurisdictions on the list there are a wide

variety of ways to deal with subcontracting in a

collective bargaining agreement. Second, the credible

evidence established that there was little, if any,

emphasis on comparability data prior to arbitration. In

this regard, even if Mr. Barrington's testimony is

accepted at face value, the comparability information he.17

allegedly presented to the City in mediation is different

than that the Union seeks to rely on in arbitration. At

the very least, the foregoing goes to the weight that

should be accorded the comparability data introduced by

the Union. Third and most important, a careful review of

the language contained in the collective bargaining

agreements of the comparator jurisdictions reveals that

it is not particularly helpful to the Union’s case. In

this regard, none of the contract language from the

comparator jurisdictions include a prohibition against

eliminating budgeted positions as a result of contracting

out. Moreover, several of the contracts contain no

language whatsoever with respect to contracting out

(Grays Harbor and Valley), at least one (Clallam City)

allows the employer to contract out after discussing the

issue with the Union and another (Link) seems to be

tailored to specific circumstances in that jurisdiction.

Finally, if comparability is going to be taken into

account, internal parity must also be considered. In

this case, the evidence established that the general unit

in this City, which is represented by AFSCME, contains

the same language as the current contract.

 

                        4 .        Award

 

                                    Retain current contract language.

 

                                    Respectfully submitted this 26th day of June, 2001

 

                                               

                                    George Lehleitner, Neutral Arbitrator