City
of
And
Interest
Arbitration
Arbitrator: Gary L. Axon
Date
Issued:
Arbitrator:
Axon; Gary L.
Case #: 12476-I-96-00272
Employer:
City of
Date Issued:
IN THE MATTER OF )
)
INTEREST ARBITRATION ) PERC
CASE 12476-I-96-272
BETWEEN )
ARBITRATOR'S OPINION
THE
ASSOCIATION, )
) 1996-98 AGREEMENT
Association, )
)
and )
)
THE
CITY OF
)
City. )
HEARING SITE: Holiday
Inn
HEARING DATES:
POST-HEARING BRIEFS DUE: Postmarked
RECORD CLOSED ON RECEIPT OF BRIEFS:
REPRESENTING THE ASSOCIATION: James M. Cline
M.
Katherine Kremer
Cline
& Emmal
Suite
No. 401
REPRESENTING THE CITY:
Perkins
Coie
One
411
-
INTEREST ARBITRATOR: Gary L. Axon
1465
Pinecrest Terrace
(541)
488-1573
Table of Contents
ISSUE Page
Introduction..................................................................2
Comparability..............................................................7
1 -
Duration..............................................................21
2 - Salary Schedule
Longevity and College Incentive.......................25
3 - Specialty
Pay......................................................56
4 - Sick
Leave..........................................................71
5 - Insurance Benefits.
...........................................79
6 -
Vehicles..............................................................90
I. INTRODUCTION
This
case is an interest arbitration conducted pursuant to the Public Employees Collective
Bargaining Act. The parties to this
dispute are
Agreements dating back to the early
1970s. The most recent contract covered
the period from
On
The
bargaining between the parties produced agreement on several issues. However,
the parties were unsuccessful in resolving all
of the issues
that divided them
in contract negotiations. Six fundamental issues were resented by the
parties for interest arbitration. The
six issues submitted for interest
arbitration also included numerous subissues or subparts.
The
last time the parties went to interest arbitration was in 1981. The 1981 award by arbitrator John Abernathy
was entered into the record of the instant case. Jt. Ex. 9 The 1981 interest arbitration was the only time
the parties found it necessary to
resort to an interest arbitrator to resolve the contract dispute. At the time of the 1981 interest arbitration
the City's population was approximately 56,000.
The
City of Everett is located in Snohomish County, Washington. The City is located on the I-5 corridor just
to the north of Seattle. The City
serves a resident population of approximately 81,810. The City has around 991 full-time equivalent
employees.
Most of the employees are members of one of six bargaining units within
the City.
The City
of Everett is
a first class
municipal corporation under the laws of the state of Washington. The City is governed by a mayor-council form
of government, with an elected mayor and
seven elected council members. The mayor
is the chief executive and administrative officer of the City. Edward Hansen
has served as mayor since January of
1994. City Ex. 1. The chief administrative assistant in the
City is James Langus.
The
Everett Police Department is led by Chief James Scharf. The
Association represents approximately 146 commissioned officers. Since 1994 nineteen police officers have been
added to the police force. For this
contract, the Association represents the commissioned officers and sergeants.
The
hearing in this case took five days for the parties to present a substantial amount of
testimony accompanied by extensive and comprehensive documentary
evidence. The parties were unable to
agree on the appropriate jurisdictions with which to compare the City of
Everett for the purpose of establishing wages and working conditions for the
members of this bargaining unit. A
substantial amount of hearing time was devoted
to receiving evidence on the issue of comparability. At the commencement
of the hearing it became obvious that the parties had a major difference of
legal opinion on what comparability
meant under RCW 41.56.030(7) (a). The Arbitrator directed the parties to
address the comparability issue as a threshold question in the post-hearing
briefs. The Arbitrator will resolve that
issue at the outset of this Award.
The
hearing was recorded by a court reporter and a transcript was made available to
the parties and the Arbitrator for the purpose of preparing the post- hearing
briefs and the Award. Testimony of
witnesses was taken under oath. At the
hearing the parties were given
the full opportunity to
present written evidence, oral
testimony and argument. The parties
provided the Arbitrator with substantial written documentation in support of
their respective positions. Comprehensive and lengthy post-hearing briefs
were submitted to the Arbitrator along with interest
arbitration awards previously issued by arbitrators in the state of
Washington.
Because of the voluminous record in this case, the parties waived the
thirty-day period an arbitrator would normally have to publish an award under
the statute.
The
six issues remaining unsettled and submitted to this Arbitrator for an Award
are as follows:
1. Duration Article 32
2. Wages Article 12 (Salary Schedule)
Article
13 (Longevity and
College Incentive)
3. Specialty Pay Article 14
Part
I General
Part
II Master Police Officers ("MPOs")
4. Sick Leave Article 24
5. Insurance Benefits Article 26
6. Take-Home Vehicles New Article
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 above stated issues. After the
introduction of the issue and positions of the parties, I will then state the
basic findings and rationale which caused the
Arbitrator
to make the
award on the
individual issue. A considerable amount of the evidence and
argument related to more than one of the issues and will not be duplicated in
its entirety during 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 record by parties.
The
statutory factors to be considered by the Arbitrator may be summarized as follows:
(a) the
constitutional and statutory authority of the employer;
(b) the stipulations of the parties;
(c) (i) . .
comparison of wages, hours and 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;
(d) the average consumer prices for goods
and services, commonly known as
the cost of living;
(e) changes
in any of
the foregoing circumstances during
the pendency of the
proceedings; and
(f) such other factors, not confined to the
foregoing, which are normally or
traditionally taken into.consideration in the
determination of wages, hours and
conditions of employment.
II. COMPARABILITY
A. Background
At
the commencement of the arbitration hearing it became clear the parties had
totally opposite opinions as to the meaning of comparability under the
statute. Each party developed its own
system for selecting comparable jurisdictions.
The methodology used by the City and Association to develop their
separate lists of
comparators had little in common.
The
Association utilized a multi-factor approach which yielded 13 cities it
believed Everett should be compared with for the purpose of fixing wages and
benefits for the 1996-98 Collective Bargaining Agreement The City countered with an approach based
solely on population The City's
methodology produced 10 cities with which to compare Everett for the purpose of
establishing wages
and benefits for the 1996-98 contract. Two cities were common to both lists.
The
division between the parties was illustrated by the fact that out of 23 cities,
only one Washington city, Kent,
appeared on both lists of comparators.
Gresham, Oregon was included on
both lists. Given the importance of
the statutory factor of comparability
and the markedly different approaches of the parties toward this topic, the
Arbitrator directed the parties to address the comparability factor as a threshold
issue in the post-hearing briefs. The
following is the statement of the positions of the parties and your
Arbitrator's resolution of the issue.
B. The
Association
The
Association proposed the following cities as its list of comparables:
Concord,
California
Corona,
California
Escondido,
California
Fullerton,
California
Gresham,
Oregon
Hayword, California
Kent,
Washington
Ontario,
California
Pasadena,
California
Redding,
California
San
Leandro, California
Santa
Barbara, California
Ventura,
California
The Association
argues its method
for selecting comparables is
superior to the method advocated by the City.
According to the Association, a multi-factor approach produces a more
reasonable set of comparables than a single-factor approach. Arbitrators have recognized that no one
single factor can truly capture the nature of a jurisdiction.
The
Association begins by claiming the City has grievously mis-
interpreted the statute in arguing that population alone is a measure of comparability. Even if the parties were to accept the
notion that "size" is
the sole determinate of
comparability, the City's argument is
nonetheless flawed. The
statute does not say that size equates
nighttime population and only nighttime
population. The statute leaves
the term size undefined. If the
Legislature intended that size meant
solely population, it would have so indicated.
The
Association next argues that the City's definition of size is misplaced. Size a concept of measurement. Nothing in the term size implies a
restriction on the object of measurement.
For example, the geographic expanse of a city is also a measure of its
size. The number of officers employed
certainly would appear to be one measure of an employer's size; The
jurisdiction's tax base has also been seen as a measure of size of an employer.
The Association
also asserted the
City's approach produced an
aberrant list of comparables. Lynnwood and Walla Walla
are of similar size but it strains the imagination to see them as
comparables. The same is true of Tukwila
and Moses Lake where the situation is that Tukwila has a tax base several times
that of Moses Lake and a police force over twice as large which protects that
tax base. In addition, the City
acknowledges such aberrations occur by artificially capping the number of
jurisdictions to be drawn from California.
The Association submits that its process of adding additional screens
through the use of multiple factors produces a more accurate rendering of
comparable jurisdictions than
does the City's undimensional
approach which necessitates the application of arbitrary screens.
Even
if the Arbitrator were to adopt the City's unusual argument that size means
only nighttime population and that likeness refers only to department unit
type, the statute still grants an arbitrator the ability to place additional
consider- ations in the process of selecting
comparators. The statute contains a
"catch-all" provision allowing the exercise of such discretion by an
arbitrator. The Arbitrator should reject
the City's approach to comparability and adopt the multi-factor approach
utilized by the Association in formulating his Award. The selection of the factors relied upon by
the Association are reasonable and have a rational basis in fact.
The
Association's jurisdictions were selected using a range of .57 to 1.75 of
Everett's demographic data on the following factors:
Total
population
Assessed
valuation
Assessed
valuation per capita
Assessed
valuation per officer
Retail
sales
Retail
sales per capita
Total
retail trade
Median
household income
Median
per capita income
Number
of commissioned officers
Numbers
of officers per thousand
Part
one crime index
Part
one crime index per officer
The
Association asserts that while population is a good indicator of the complexity of the City, population has its limitations. The tax base should be given heavy
consideration in selecting comparables because it is the fundamental source of
the employer's ability to pay. The same
is true of retail sales because in Washington State retail sales are an
important source of revenue. Per capita
also measures the tax base of a jurisdiction.
It
is also the position of the Association the number of officers is a good
measure of comparability. Further, the
number of crimes and crimes per officer are reasonable
measures of workload within jurisdictions.
The volume of crimes per officer is simply the best available common
measure we have of workload.
The
variance range for selecting comparables relied upon by the association is better than the range used by
the City. What the Arbitrator should
seek in selecting comparables is balance on the given criteria. The Association's approach of minus 50%, plus
100% screen is more likely to produce such a balance. The Association concludes its mathematical
approach is blind to the end result and is a more defensible strategy for
advocates in interest arbitration.
The
statute indicates the comparables should be drawn from "the west coast of the United States." Contrary to the City's position, the
Association asserts that no special weight should be given to Oregon jurisdictions. The City seeks to use 100% of the
jurisdictions in its stated range from the state of Oregon, yet the
City only selected two out of seventy such
jurisdictions in California. There is
simply no statutory basis for providing undue weight to Oregon as the City proposes.
The City failed to produce any evidence that Everett shows a labor
market in common with western Oregon.
The Arbitrator should hold the City's methodology is an "obvious
result-oriented ploy meant to give undue weight to
lower-paying Oregon jurisdictions."
Arbitrators
have consistently held that close geographic proximity between jurisdictions
warrants special consideration in selecting comparables. Some arbitrators have said that close
geographic proximity can offset dissimilarities in size. The King County and Snohomish County area has
been found by arbitrators to make up a common labor market. Pierce County has been acknowledged as
secondarily related to the Snohomish County and King County labor market. A review of police wages indicates that
proximity to a metropolitan areas strongly influences wages. Everett's common designation with Seattle as
part of the Seattle-Everett-Bellevue
PMSA is significant because the census data is strongly indicative of
the labor market. The labor market for
the Everett Police Department is heavily influenced by its location in the
Seattle-Everett-Bellevue PMSA.
Although
the Association placed primary reliance on its multi-factor analysis,
the Association offered a second set of comparables made up of those
four labor market jurisdictions closest to Everett in demographic
characteristics. The Association proposed for its secondary set of comparators
the cities of Tacoma, Bellevue, Renton and Kent.
Turning
to the City's inclusion of Federal Way as a comparator, the Association argues
that nonunion employers should be rejected in selecting comparables. First, employees who are not unionized do not
have their wages, hours and working conditions determined under a statutory
procedure. Second, compensation would not be comparable between such
jurisdictions because higher wages would typically be offset to some extent by
union dues. Third,
there is no basis in nonunionized
jurisdictions to compare respective rights of management or labor in
determining working conditions.
In
sum, the Arbitrator should find that the comparables proposed by
the Association are
more reasonable than
the comparables proposed by the City.
The City's sole reliance on population has produced a distorted result
because it artificially capped the number of potential comparables from
California at two
and both of those jurisdictions are from the
Los Angeles area. When analyzed closely,
the City's two California comparables proved not to be very comparable at
all. The Arbitrator should adopt the
Association's balanced list in which Everett by and large falls near the middle
on the most important factors of comparability.
C. The
City
The
selection process utilized by the City to arrive at its comparators yielded ten
west coast cities as follows:
State Population
Washington:
Bellevue 103,700
Federal
Way 75,240
Vancouver 67,450
Yakima 62, 670
Kent 60,380
Bellingham 59,840
Oregon:
Gresham 77,240
Beaverton 61,720
California:
Westminster 82,500
Whittier 82,500
Alaska: None
* * *
Everett 81,810
In
identifying the above listed comparables, the City undertook to be true to the
statutory mandate. According to the
City, the Legislature opted for a simple, objective criterion for the selection
of comparables: cities of similar size
on the west coast. The City
embraced and applied
the four statutory requirements for comparable cities
to be: (a) "likeness" to the
City as an employer, i.e.,
cities; (b) "likeness" to police officers, i.e., police
officers; (c) size similar to the City,
i.e., population in the range of the City;
and (d) geographical location, i.e., west coast states (Washington, Oregon,
California, and Alaska).
The
City argues that the statute requires the comparison to be among "like
employers." In the view of the
City, like employers necessarily means
cities. The sole meaning of "like employers"
is the form of government. The City
submits that the "like employers" requirement cannot be expanded to
include city character- istics other than
"similar size." The "like
employees" necessarily means police officers.
The
City next argues that the statutory standard is clear and unambiguous. The statute specifies "similar
size" which as a matter of common sense means the population of the
city. The plain meaning of the term
size, coupled with the legis- lative
scheme of classifying cities according to population, provides compelling
support for the proposition that the term
similar size means population.
Arbitrators have routinely held that similar size equates to
population. The definition of west coast
cities has been interpreted to mean cities within the states of Alaska,
Washington, Oregon and California.
Hence, the language requires comparisons
of cities of comparable
size in the
states of Washington, Oregon,
California and Alaska.
Applying
the above stated principles, City began
by adopting a population range of 25,000 less than and 25,000 greater than
Everett's population of 81,810. The
25,000 figure constitute a 30.55% variation on the size of the city.
The
City next identified cities on the west coast falling within the population
range of 56,810 to 106,810. This process
yielded six cities in Washington, two cities in Oregon, 70 cities in California
and no Alaska cities. In order to reduce
the number of California cities and to balance the overall sample, the two
California cities offering the closest population up and down in comparison to
Everett were selected. The two
California cities arrived at under this process were Westminster and Whittier.
The
City maintains that this set of comparators is well balanced and comports with the statutory mandate, and with
common sense and objectivity. Each is a
west coast city and the average population of 73,324 is within 12% of Everett's
population of 81,810. In the view of
the City, there is also a remarkable
balance in west coast location in
distribution from north to south.
Regarding
the Association's approach to comparables, the City asserted it makes a
"dysfunctional mockery of both (a) the governing statue and (b) the concept of principled and predictable
bargaining and interest arbitration." The Arbitrator should reject the
Association's result oriented process as not meeting the requirements of the
statute. This means the Association's
would-be comparables may not be considered through the back door of the
"other factors" criterion. The
comparability test of size preempts consideration of extra-statutory
comparables.
A
review of the Association's primary comparables reveals the Association
abandoned Washington and Oregon in favor
of California. Eleven of the thirteen
cities on the list are located in California and only one is in Washington and
only one is in Oregon. The City argues that this
flight from the Pacific Northwest
is no doubt occasioned by the Association's determination that its wage demands
are not supported by Washington and Oregon cities. The Arbitrator should reject the "flight
from the Pacific Northwest" tactic.
Even
the Association recognized the vulnerability of its
primary
sample, by offering
a secondary set
of comparables
ostensibly based on the local labor
market. Only four cities were
offered and we were not told how they could
be styled as comparable
to Everett.
The city of Tacoma is twice as large as Everett.
Bargaining
history reflects that the Association changed
its list of comparators with frequency right
up until arbitration.
On the other hand, the City consistently
stood by its proposed
comparators with the exception of Federal
Way which did not have a
police department at the time. Adoption of the Association's forum
shopping fundamentally defeats the statutory
purpose of comparables
as a benchmark for contract settlement in
bilateral negotiations.
While the statute may not be perfect, it
must be honored by the
parties and the Arbitrator.
Based
on all of the above stated reasons, the Arbitrator
should reject the Association's proposed
comparators and adopt the
list submitted by the City as the benchmark
for establishing wages
and working conditions for Everett police
officers.
D. Discussion and Findings
The failure of
the parties to reach any
agreement
regarding cities with which Everett should
be compared is contrary
to the legislative purpose of providing
"an effective and adequate
alternative means of settling
disputes." RCW 41.56.430. The
problem of selecting appropriate comparators
is further complicated
by the total absence of cities traditionally
used by the parties to
measure wages and benefits for Everett
police officers. The
statute requires interest arbitrators to
give due consideration to
comparability. Both parties to this dispute recognize the
fact
that comparability is a predominate force
for the resolution of
this dispute.
Even
though the parties have a long history of Collective
Bargaining Agreements, in one sense the
Arbitrator is starting from
the beginning in this interest arbitration
due to the total lack of
agreement as to the appropriate comparators. RCW 41.56.465(1)
counsels interest arbitrators to use the
statutory factors as
"guidelines to aid in reaching a
decision" in making an award on a
contract dispute. The City's staunch adherence to population as
the exclusive determiner of like employers
ignores the fact that
other elements may give insight into the
meaning of a "like
employer." Further, the City's narrow reading of the
statutory-
reference
to "like employers" runs
counter to the
stated
legislative
purpose of utilizing
the statutory factors
as
"guidelines to aid" in reaching a
decision. The statute instructs
interest arbitrators to be mindful of the
statutory purpose and
factors, not to be shackled by them in the
development of an award
Moreover, the "other factors" provision
specifically
acknowledges there are additional elements
which may be taken into
consideration in the "determination of
wages, hours and conditions
of employment." In the 1981 interest arbitration the City
used
population and assessed property valuation
as a selection criteria
Jt. Ex. 9, p. 8. Further, arbitral authority has long
recognized
that geographic proximity may play an
important role in determining
"like employers." The Arbitrator does concur with the City that
when determining comparability the greatest
consideration should be
given to size of the population.
The
Association's multi-factor analysis is a methodology
that is often helpful in coming to a
decision on comparability
However, the Association' s study which
produced a list of thirteen
cities composed of eleven California cities,
one Oregon and one
Washington city is totally out of touch with
the statutory factors.
The simple fact is that Everett, Washington
is not a California
city. In the judgment of this Arbitrator, it would
be totally
unrealistic to make an award based primarily
on the wages and
benefits paid in eleven California
cities. The inclusion of only
one Washington city out of the thirteen
chosen comparators would in
effect compel this Arbitrator to treat
Everett, Washington as a
California city for the purpose of
establishing wages and benefits.
The evidence
before this Arbitrator
provides no
justification for an approach that holds
only one Washington city--
Kent- -would be an appropriate comparator to
establish wages for
Everett, Washington police officers. To adopt the Association's
comparators with eleven California cities
also would require the
Arbitrator to disregard differences in the
California system of
government,
taxation, revenue sources,
assessment, retirement
systems, etc., from that of Everett,
Washington. Therefore, the
Arbitrator rejects the Association's
proposed list of comparators
as a distortion of the statutory
requirements for deciding this
interest arbitration.
The
Association's reference to interest arbitrations
involving Seattle, using a substantial
number of California cities
for purpose of comparison, is
misplaced. Seattle stands by itself
in terms of "population" or
"multi-factors" identified by the
Association, when compared with other
Washington cities. Where
there is an adequate number of comparable
Washington cities with
which to compare Everett, there is no need
to load a list of
comparators with eleven California cities.
While the
Arbitrator faulted the
City's exclusive
reliance on population for developing its
list of comparators, I am
persuaded that the City's jurisdictions
provide a reasonable and
appropriate list of cities to serve as the
comparators in this
1996-98 interest arbitration. One of the goals of this Arbitrator
when deciding interest arbitration cases is
to leave the parties
with a list of jurisdictions that will serve
as a solid base for
future negotiations. In seeking to accomplish that goal, your
Arbitrator has not been reluctant--in other
interest arbitration
cases- - to fine tune and modify the
proposed lists of comparators
offered by the union and employer. The record of this case
provides little basis for either fashioning
a blended list or
adopting the Association's proposed alternative
comparators.
Based
on all of the stated reasons, the Arbitrator adopts
the City's proposed list of comparators
("West Coast 10" or "WC
10") as the "guideline to
aid" in reaching a decision.
ISSUE 1 - DURATION
A. Background
Article
32 of the prior Agreement provided for a three-
year contract effective January 1, 1993,
through December 31, 1995.
The Association is proposing the successor
contract cover the two-
year period from January 1, 1996, through
December 31, 1997. The
City offered a three-year contract to remain
in effect through
December 31, 1998.
B. The
Association
The
Association argued that a two-year Agreement was
appropriate due to the number of items that
have arisen which need
negotiations before the expiration of a
three-year contract. Tr.
71-73. According
to the Association, there is a large equity gap
that needs to be closed which cannot be done
under the terms of a
three-year contract. The Association submits it should have the
opportunity
to bargain the new issues under
a shorter term
contract.
The
Association recognized that this
Arbitrator has
generally awarded three-year contracts when
the bargaining has been
prolonged.
If the Arbitrator were to award a three-year Agreement,
Association would want to have another wage
increase based on the
CPI plus 2%.
The duration clause imposed by the Arbitrator should
consider the equity catch-up needed and
trends in police contracts
over a three-year period.
C. The
City
The
City takes the position that a three-year Agreement
is appropriate. The City notes that the parties have already
invested substantial time and money in the
attempt to negotiate a
successor Agreement. If only a two-year contract is entered, about
75% of the term of the contract will have
elapsed when the contract
is finally awarded. The impact of the two-year contract would
place the parties immediately back in full
scale negotiations.
Moreover,
the three-year contract will preserve what the
City termed as "numerous favorable
provisions in an already liberal
contract for Everett police
officers." RCW 41.56.070
effectively
emphasizes
three-year contracts as an optimum duration. The
comparables
also support a
three-year contract. Thus,
the
Arbitrator should reject the Union's position
and award a three-
year contract.
The
City also cited this Arbitrator's analysis in Clark
County Deputy Sheriffs Guild and Clark
County, PERC No. 11845-1-95-
252.
The
Arbitrator can think of no valid reason
for
awarding a contract which would compel the
parties
to immediately begin negotiations for
a
successor to the Guild's proposed 1995-96
Agreement. If the Arbitrator were to adopt a
two-year
Agreement, approximately 75% of the
contract's
duration would fall prior to the
signing
of the Agreement. As the County
correctly
pointed out, the "shelf-life" would
be
approximately seven months. The idea of
compelling
these parties to turn right around
and
begin bargaining for a successor Agreement
is
totally without merit.
D. Discussion
and Findings
The
Arbitrator holds that the City's proposal for a
contract extending through the last day of
December 1998 should be
adopted.
There is little to say for awarding a contract which
would be approximately 75% elapsed at the
time it is concluded
The parties
to this Agreement need a reprieve from the time
consuming and expensive aspects of the
collective bargaining
process.
The adoption of a three-year Agreement will allow for a
return to stable labor relations.
At the
conclusion of the arbitration hearing, the
Arbitrator advised the parties that it would
be prudent to frame
their arguments in the post-hearing briefs
in the terms of a three-
year Agreement. The Arbitrator has reviewed the record in
this
case and can find no legitimate reason for
awarding a two-year
contract.
The Arbitrator's analysis in the Clark County case cited
above is equally applicable to the instant
case. Therefore, the
Arbitrator will enter an award adopting the
City's proposal.
AWARD
The
Arbitrator awards that Article 32.1.1 should be
amended to read as follows:
ARTICLE
32 DURATION
32.1 General.
32.1.1 This Agreement shall be effective as
of
the 1st day of January, 1996, and shall
remain
in full force and effect through the
last
day of December, 1998. Any one
(1)
Article
may be opened if mutually agreed to by
both
parties. If Agreement is not reached
within
thirty (30) days, the said Article or
Articles
will remain in force as written. It
is
further provided that by mutual agreement
this
contract may be modified or clarified at
any
time.
ISSUE 2 -
SALARY SCHEDULE/LONGEVITY AND COLLEGE INCENTIVE
A. Background
Issue 2
involves two sections
of the Collective
Bargaining Agreement relating
to compensation. The parties
presented the evidence on these two sections
as part of their total
proposal on compensation. The wage scale for members of this
bargaining unit is found in Article 12. The subjects of longevity
and college incentive premiums are addressed
in Article 13. The
Arbitrator will decide the two issues
separately for purposes of
continuity in the Award. However, the two sections are closely
related to the compensation members of this
bargaining unit receive
and will be discussed together when resolving
this issue.
The 1993-95
salary schedule provides
for two job
classifications. The two classifications are police officer
and
sergeant.
Under the 1993-95 contract new hires advanced to the top
step over 24 months. The police officer classification has three
steps and one step at the sergeant level.
The
salary schedule effective January 1, 1995, provides
for a monthly wage as follows:
Classification Range Third Second First
Title No. Class Class Class
MONTHLY RATE
Police
Officer 03-021 2987 3272 3917
Sergeant 03-012 4896
Salary
progression intervals are twelve (12)
months
between steps.
The
City of Everett does not participate in the social
security system. Section 12.5.1 provides for a Section 457
Deferred Compensation Program in lieu of
FICA contributions. The
City agrees to match contributions made by
Association members to
the Section 457 plan up to a maximum of $75
per month. The
Association
is proposing to
change the maximum contribution
required from the City to 7.65% of salary,
rather than the $75
maximum.
The
City has proposed to change the salary schedule
progression for officers hired after the
date of this Award.
Police officers hired after the date of the
interest arbitration
Award, would be placed on a separate salary
schedule consisting of
four steps taking 48 months to reach the
maximum salary. New hires
in the sergeant position would advance to
the top step over 24
months rather than the single step currently
provided for the
sergeant classification. The Association would continue the
structure
of the 1993-95
salary schedule in
the successor
Agreement.
The
parties recognize the value of longevity pay and
college incentive pay as part of the overall
compensation program.
Article 13 allows the officers the option of
receiving either
longevity or college incentive but not both
incentives. The
Association is proposing to continue the
incentive programs in
their current form. The City has made an offer which would change
the incentive program to a fixed dollar
amount for officers hired
after the date of this interest arbitration
Award.
In
a preliminary ruling on the comparability issue, the
Arbitrator
determined that the
City's WC 10
provided the
appropriate list of comparators with which
to measure wages and
benefits for Everett police officers. The Arbitrator will not
repeat the discussion in this section of the
Award. Further, the
Arbitrator will not burden this record with
an extensive discussion
of
the results of the
Association's comparison study.
The
Arbitrator will give the greater weight to
the data and studies
produced by the City.
B. The
Association
The
Association proposed a two-year contract which would
provide for a wage increase effective
January 1, 1996, of 100% of
the Seattle CPI-W July 1995 plus 2%. For the second year of its
proposed two-year contract, the Association proposed effective
January 1997 an additional increase of 100%
of the CPI plus 2%.
The Association also suggested that if the
Arbitrator were to award
a three-year contract a wage adjustment of
100% of the CPI-W plus
2% would be in order for 1998.
The
Association argues its wage proposal
should be
adopted because it presented a fair set of
comparators. The
principle followed by most interest
arbitrators is that the target
jurisdiction wages ought to be brought up to
approach the average
absent
special circumstances. The
Association submitted the
comparability data it offered supports the
salary proposal.
The Association next argued that comparisons
should be
made using "normalized hours and
retirement pick-up." The concept
of normalization was presented by the
Association because Everett
officers work in excess of the normal 2,080
hour annual schedule
for police officers. The scheduling utilized in Everett results in
officers working a 2,192 hour schedule per
year. Thus, the
Association submits the compensation study
should be normalized to
give recognition to the fact that
hours and do not receive time and one-half
pay for hours worked
over the traditional 2,080 hour annual
schedule.
Moreover,
the normalization of hours has another aspect
that is necessary for making an "apples
to apples" comparison. The
inclusion of a retirement pickup should be
provided for in making
wage comparisons where there are
out-of-state jurisdictions which
have negotiated pension pickup in lieu of
wage increases. The
City's argument that pension pickup should
not be included because
it is illegal in the state of
pickups have been negotiated in lieu of wage
increases.
The
Association next argues that total
compensation
should also be considered by taking into
account wages, retirement
pickup,
state retirement contributions
and other measurable
elements
of direct pay
such as education,
longevity and
certification premiums.
Applying the
above concepts to the Association's
comparables,
the Association submits the wage
discrepancy is
"overwhelming." The Association's
normalized wage study shows that
the discrepancy between the City of
primary comparables is nearly 18%. Assn. Ex. 62.
Further, the
discrepancy between
normalized and adjusted is 5% . Assn.
Ex. 64. The salary
discrepancy in the local labor market is in
excess of 7%. Assn.
Ex. 63.
When the 1997 wage increases for the other jurisdictions
are taken into account, the discrepancies
between
other cities grows even greater.
The
use of a total compensation analysis reveals an even
wider gap in the compensation provided to
paid
in the comparison
jurisdictions. According to the
Association, the total compensation gap
between
Association's comparables is nearly
20%. Assn. Ex. 82. Even if
the Association's methodology is applied to
the City's comparables,
the total compensation gap averages in
excess of 5% Assn. Ex. 92.
The
Arbitrator should reject the City's attempt to arrive
at a "weighted average" through
the use of specialty assignments.
The Association is not aware of a
decision which has adopted a "weighted
average" method of comparing
wages.
Because there is a significant number of officers who
receive
no such additional
compensation, it is
unfair and
prejudicial for the City to produce a study
which incorporates
specialty assignment pay into the overall
level of compensation.
The
Association also attacks the City's wage report as
containing other calculation flaws. For example, they report wage
increases in California jurisdictions which
are effective in July
1996 in their 1997 wage charts and yet
failed to include a 2%
increase for Federal Way officers for
1997 The bottom line is
that the wages received by Everett officers
are far behind any
reasonable set of comparables offered by
either side at this
arbitration.
The
Association also argues that factors traditionally
relied upon by arbitrators other than
comparability support the
Association's wage proposal. The Association's arguments on the
other factors traditionally relied upon are
summarized as follows:
1. A
review of police
wages in King,
Snohomish
and Pierce Counties indicates that
Everett officers
lag far behind
other
similarly
sized and situated jurisdictions.
Assn.
Ex. 53. In the Association's proposed
secondary comparators
of Renton, Kent,
Bellevue
and Tacoma, police wages are nearly
$300
per month higher than Everetts. The City
offered
no good explanation of why such a gap
should
continue to exist.
2. Everett's overall position in the state
police
wage ranking relative to the City's
size
and tax base supports the Association's
wage
proposal. The City of Everett has the
fifth
largest daytime/nighttime population,
the fifth highest number of officers, the
fifth largest
assessed valuation and
the
seventh largest
amount of retail
sales.
However,
the Everett police rank twenty-second
in
wages. Assn. Ex. 217. This evidence shows
the
City has simply failed to keep pace with
the
growth and wages in the industry which has
been
designed to compensate officers for their
increasing
professionalization.
3. Internal equity supports the
Association's
wage
proposal. The City has proposed freezing
wages
for this bargaining unit for 1996 but
has
offered no wage freezes for other City
bargaining
units. Further, the
City has
offered
a reduced wage increase to the members
of
this bargaining unit for 1997 when compared
to
that provided for other bargaining units.
The
second internal equity factor concerns
police-fire
parity which should be discarded
by
this Arbitrator. The effect of parity
between
police wages and firefighter wages is
to
artificially suppress police wages.
4. The historic wage relationship supports
the
Association's proposal. A comparison of
a
relative decline in wage standings in excess
of
10% since 1979. In that time
slipped
from being the second highest paid in
the
local labor market, to being number twelve
out of
thirteen cities. Adoption
of the
Association's
wage proposal would be a first
step toward
a reversal of
this recent
inequity.
5. An
analysis of the
average area
settlements
for police officers indicates they
are
running in excess of 3%. Assn. Exhs. 212,
213. Clearly, the settlement trends support
the
Association's proposal.
6. The cost of living index should be
viewed
as a
floor for the
settlement of labor
agreements absent
special circumstances.
Where
the bargaining unit is in a catch-up
situation,
the CPI Index is much less relevant
to
the determination of a wage settlement.
The
Arbitrator should
reject the City's
argument
that the CPI Index overstates the
degree
of inflation. What is most relevant in
this
dispute is that
been
falling behind the comparables for many
years
and now stand far behind.
7. The current economic conditions in the
state, regional and local economies support
the
Association proposal. All of the
economic
indices
indicate the regional and local area
will
continue to enjoy prosperity into the
foreseeable
future.
8. The City has more than ample resources
to
pay
the Association's wage proposal. While
the
City cites a $2 million cost difference
between the
cost of implementing
the
Association
proposal and the City's proposal,
this
is unrealistic because it is calculated
from "the
City's low-ball offer." The
financial evidence reveals the Association
proposal
will not cost much more than what the
City
has already budgeted.
9. The officer workload in Everett has
been
increasing
at a steady pace. In addition,
officers
are being placed at Level 2, whereby
routine calls
are not even being handled
because
of the need to handle priority calls.
The Association
submits that failure
to
correct
the significant wage slippage will
have
an adverse impact on employee morale and
productivity.
10. The continued relative erosion of
Everett's
wage position will diminish the
number of
qualified applicants seeking
employment
with the City. The City's data on
applicant and
employee turnover is flawed
because
there are no points of comparison to
other
jurisdictions. Finally, the City's data
does
not take into account the qualifications
of
those seeking employment with the City of
Everett.
In
sum, the Association' s wage proposal should be awarded
as consistent with the statutory
criteria--as applied to the record
evidence.
The
Association proposed to amend
Section 12.5 to
increase
the amount of
match to the
Section 457 Deferred
Compensation Program to a maximum of
7.65%. In the view of the
Association, the current $75 maximum is
wholly inadequate as a
substitute for the benefits provided under
the social security
system.
Social security offers many extensive protections, not
simply in retirement, but for individuals
and their families such
as death and disability benefits. The City's argument the current
$75
per month maximum was intended as
a complete and final
substitution for social
security is wrong. There is
not a
scintilla of evidence the Association ever
agreed to forego future
proposals in this area.
The
data from the comparables indicates an increasing
number of jurisdictions are adding deferred
compensation benefits,
especially for employee groups who are not
covered by social
security.
The comparability data
clearly supports the
Association's proposal. Even the City has acknowledged this trend
by agreeing to increase the deferred
compensation for firefighters
in 1997 to $90 per month and $100 per month
for 1998 and 1999.
The
Association submits the deferred compensation is in
the mutual interests of the parties. It 's a more rational way to
package compensation because of the payroll
tax savings it offers
the City and is a means to improve the
status of LEOFF II officers
who will have to work longer to get less
than LEOFF I officers at
retirement.
The
Association's offer to move to a percentage basis is
compelling because the benefit it is
substituting for is itself
percentage based. Not a single one of the jurisdictions in the
state which offer the deferred compensation
extends it on a dollar
basis.
The $75 had already eroded significantly since it was
originally
added to the prior Agreement and is in need of
improvement through the means of a set
percentage.
Regarding
the City's proposal to modify the wage grid,
the Arbitrator should reject this proposal
to create a two-tier
wage structure and extend the number of
steps in the wage grid.
Because this involves a major change to the
structure of the salary
schedule, the City carries a heavy burden of
proof on an issue of
this type.
The adoption of the City's proposal will only widen the
huge
wage discrepancy that
exists between Everett
and the
comparable jurisdictions. Even if there is merit to a change in
the wage grid, the Association submits the
logical solution is to
add an additional step with further
compensation for all officers
rather than elongate the scale while keeping
the current pay
levels.
The same arguments also apply to the City's proposal to
amend Article 13, Longevity and College
Incentive to extend the
progression and convert to fixed dollar
amounts.
For
all of the above stated reasons, the
Arbitrator
should award the Association's proposals and
reject the City's
regressive and punitive proposals in the area of salary and
incentives.
C. The
City
The
City proposed a three-year contract with a salary
freeze for 1996. Pursuant to its 1996 offer, the 1995 wage
schedule would carryover into 1996 with no
change in the structure
of the salary schedule.
The
City proposed the 1997 salary schedule for police
officers and sergeants would be adjusted by
a 2.5% increase on the
1996 salary schedule. In addition,
the City would modify the
existing salary schedule to make a
distinction between current
employees and new hires. For those employees hired before the date
of the interest arbitration Award, the
structure of the salary
schedule would remain unchanged. For those employees hired on or
after the date of the interest arbitration
Award, the salary
progression intervals for police officers
would occur over 48
months, as opposed to 24 months for current
officers. New hires in
the sergeant classification would advance to
top step over 24
months, as opposed to immediate advancement
for current police
officers.
The
City proposed that the 1998 salary schedule for
police officers and sergeants would be
determined by increasing the
respective 1997 salary schedules by 80% of
the percentage change in
the Consumer Price Index (CPI-U) for the
Seattle-Tacoma area for
the first half of the 1996 semi-annual
average to the first half of
the 1997 semi-annual average.
The
City would continue the current language found in
Section
12.5.1 providing for
a maximum of
$75 per month
contribution to the Section 457 Deferred
Compensation Program. The
City rejects the Association's demand to
change the current "in
lieu of FICA contributions" arrangement
to a percentage amount.
The
City asserts the evidence shows that Everett police
officers and sergeants would be compensated
at very competitive
levels under the City's offer. The City's arguments are summarized
as follows:
1. City calculated that over the term of
the
1996-98
contract, members of this unit would
receive
wage increases ranging from 5% to a
maximum of
37.6%, inclusive of
step
advancements. The City's assumption is based
on calculations
with no salary
schedule
increase
for 1996, a 2.5% increase in the
salary
schedule for 1997 and a projected 2.4%
increase
for 1998.
2. The members of this bargaining unit
have
fared quite
well since the
1981 interest
arbitration. The average annual wage increase
has
been 12%. In 1990 the average wage,
including
education and longevity pay, was
$1,730
per month. By January 1, 1995, the
average
was $4,642 or an overall increase of
180%. Base wages for police officers during
this
same period have increased 115.8% and for
sergeants
the increase has been 145.2%.
3. The comparison of the City's pay with
salary schedules
in the City's
WC 10
comparables
amply supports the City's wage
offer. City Exhs. 7-G
through L.
4. The City's proposal is supported by the
CPI over
time in that
members of this
bargaining
unit will continue to remain far
ahead
of price changes recorded by the CPI.
5. The
Everett Police Department is an
excellent place
to work as
measured by
superior
staffing levels, moderate workloads,
low
turnover and high applicant availability.
6. The favorable conditions enjoyed by the
members
of this unit have been promoted by the
fact
19 new police officers have been added
since
1994. Public safety staffing for police
has
been a top priority of Mayor Hansen and
the
City Council.
7. While the top base pay for police officers
is $3,917
and the rate for a sergeant is
$4,896, the actual average 1996 "weighted"
monthly
wage is
$4,186 for 128
top step
employees. When specialty pay is added for 34
police officers,
the "weighted" average
increases to $4,228
per month. The City
submits that
before longevity pay
and
education incentive
pay are added,
the
"weighted"
monthly average salary is $4,186
for the
128 top step
employees in the
bargaining
unit. This represents a
significant
opportunity to advance in pay.
8. The
base salary schedule
for police
officers
and sergeants is only part of the
wages
received by members of this bargaining
unit. The
liberal college incentive
and
longevity program
benefitted
89% of the
employees
in the bargaining unit in 1997. The
average
monthly longevity incentive paid by
the City
to all EPOA
unit members who
qualified
amounted to a total of $2,441 in
1996,
or 5.2% of salary. The average monthly
education
incentive paid by the City in 1996
for
all EPOA unit members is $2,676, or 5.7%.
City
Ex. 7, p. 9. None of the comparables has
an
education or longevity pay schedule as rich
as
and 11%
for education. The
specialty
assignment
premium pay of 4% is paid to 54
members
of this bargaining unit on top of the
incentive
programs.
9. The City calculated that with longevity
the
City's offer is 3.6% above the average at
four
years of
service to 11.2% above the
average
at 28 years of service. On average,
Everett
police officers are paid 6.2% above
the
comparator jurisdictions. Sergeants fair
even
better as they are paid 8.9% above the
average
for police sergeants.
The same
calculations made for
1997
demonstrate
that with the City's offer police
officers
will be paid 3.9% above the average
at
four years of service to 11.4% above the
average
at 28 years of service. On average,
Everett
is 6.5% above the average for police
officers as of
January 1, 1997. Everett
police
sergeants would enjoy a pay rate of 9%
above
the average for police sergeants as of
January
1, 1997.
10. The
City notes the
current step
progression
of 24 months is extremely rapid
when
compared to the other jurisdictions. The
adoption
of the City's proposal to elongate
the
salary progression by two years and apply
it
to officers hired after the arbitration
Award
would bring Everett into line with the
comparable
cities. Pursuant to the City's
proposal
to change the salary grid, Everett
police
officers hired after the date of the
Award
would enjoy a
salary schedule that
begins 3.6%
above the average
of the
comparable
cities and grows after 48 months to
6.8%
above the average. When July 1, 1997,
wage
increases are added, Everett would still
remain
at least 2.5% above the average at the
entry
step1 and 5.7% above the average after
48
months.
11. The CPI factor supports the City's offer
in
two main ways. The Seattle CPI-U has
increased
by 95.1% since 1980. During that
same
period, sergeant's wages have increased
145.2%
and police officer's wages increased by
115.8%. Both classifications of employees
have
received wage increases well in excess of
the
increases recorded in the CPI-U over the
same
period. For the sergeants and police
officers
actually employed as of the 1981
interest
arbitration, the average annual wage
increase
received during this 15 year period
has
been 12%. The average increase in the
Seattle
CPI-U has only been 6.3% per year.
12. The wage package for sergeants and police
officers
compares even more favorably to the
comparable cities
when the deferred
compensation contributions
are taken into
consideration. The
deferred compensation
program
yields an additional $75 per month, or
$900 per year
for each EPOA unit member
participating
in the program. The most common
practice among
the comparables is
zero
deferred compensation
contribution. The
Association's
demand to increase the maximum
allowable
amount to 7.65% would be extremely
expensive. The Arbitrator should reject the
Association's demand
to increase the
contribution
in lieu of social security to an
amount
which is unjustified by any evidence in
the
record.
13. The salary demands of the Association
would
cost the City an additional $2,420,308,
which translates
into a wage increase
of
$13,988,
on the average for each of the 146
members
of the Association bargaining unit.
When
the cost of the deferred compensation
program
is added to the total cost of the wage
increase
of the Association's proposal it
brings
the amount up to $3,454,139 in excess
of the
City's offer over
the three-year
contract. The
Association's proposal is
simply
too expensive for the City to fund.
The
City's attack on the Association case was framed in
the post-hearing brief as follows:
In an
attempt to bolster
its ambitious
economic
demands, the EPOA shamelessly shops
for
comparables (as treated above) , utilizes
palpably faulty
compensation models (as
treated
below) , and advances misleading and
erroneous
data (as treated below) . Moreover,
the
EPOA centers its wage demand on Everett's
hours
of work, which the EPOA then tries to
market with
the unprecedented concept
of
"normalization."
Brief,
p.41.
The City submits the Association's concept
of "normalization" does
not even begin to withstand scrutiny.
The
use of normalization is unprecedented in any sort of
wage determination context. Further, the hours of work are not an
issue in this case, as the issue was
resolved by the parties before
arbitration. During the bargaining process
the Association did not
propose
to alter the existing 3/12
schedule and the 42-hour
workweek.
The members want the current schedule.
Thus, the
Association cannot properly act as if hours
of work are in dispute
in order to bootstrap an unjustified upward
adjustment in wages.
The
Association's normalization tactic also suffers
fatal failure of proof because it depicts
only scheduled hours.
The evidence is unrefuted
that during 1996 Everett patrol officers
were not at work an average of 252.69 hours
out of the basic 2190-
or 2184-hour schedule. This takes into consideration sick leave,
vacation,
disability, funeral leave,
holidays etc., when
the
officers are not scheduled to work.
In
sum, there is no basis for concluding that Everett's
officers work more hours, and there thus can
be no basis for
discounting Everett's wages on the
unfounded--and unproven--premise
of more hours worked by Everett officers.
The
City next argues that the Arbitrator should take no
direction from the Association's
"compensation" methodology and the
associated linchpin
"normalization." The City objects
to these
broad sorts of wage and hour analyses
because the entire economic
package is not before the Arbitrator. Further, the Association
incorrectly includes such items as Social
Security, Medicare, MEBT,
State Retirement and Total Retirement in many
of their exhibits
which
renders their compensation
analysis totally useless.
The
association's compensation model purports to factor
in back door comparisons of scheduled hours
of work through the
normalization analysis.
The Arbitrator should
reject the
Association's flawed attempt to discount
Everett's top step of
$3,917 per month to $3,728 per month as the
basis for wage
comparisons with other cities.
It is
also the position
of the City
that the
Association's calculations are based on
erroneous data and suspect
computations which renders the majority of
the Association's data
totally unreliable. While an occasional error is to be expected,
the pervasive errors in the Association's
data is unacceptable.
Thus, the Arbitrator should not rely on the
Association's distorted
analysis which understates Everett wages and
infects a number of
other Association exhibits in one way or the
other.
The
City maintains that the Association's case is shot
through with irrelevant and/or unfounded buzz words such as
"trends," "industry
standards" and "parity."
According to the
City, the Association repeatedly used these
words without producing
evidence to prove the points in the context
of which they were
utilized.
The Arbitrator should reject any claim made by the
Association which is based on assertions
that are not supported by
factual evidence.
Article 13 - Longevity and Colletive Incentive
The
City proposed as part of its position on compensation
to change the longevity and college incentive
schedules for new
employees hired after the date of the
arbitration Award. The
existing schedules with its system of
percentage driven incentives
would continue to apply to all current
employees. Pursuant to the
City proposal, it would add 24 months to
each of the longevity pay
brackets consistent with its proposal to
change the base salary
progression from 24 to 48 months, and to convert the existing
percentages to fixed dollar amounts. The college incentive pay
system would also be converted to a fixed
dollar amount.
The
City maintains that the existing longevity pay and
education incentive pay are overly rich and
excessive when measured
against the comparables. The modification proposed by the City
will bring it more in line with the comparable
jurisdictions.
Moreover,
the City sees an advantage of converting to
dollar value for premium pay in that it
decouples them from the
monthly base pay, and thereby obligates the
parties to rationally
examine and discuss changing the incentives
during negotiations,
rather
than having automatic increases
pass through to the
incentives. The 2% longevity premium for a
top step police officer
in 1996 is a lush $940 per year. Thus, the Arbitrator should award
the City's proposal on longevity and college
incentive for new
police officers hired on or after the date
of the interest
arbitration Award.
D. Discussion
and Findings
The Arbitrator
has awarded a
three-year Agreement
covering the period from January 1, 1996,
through December 31,
1998.
The Arbitrator finds the City's proposal to establish a
separate wage grid for new employees hired
after the date of this
Award should not be adopted. Further, the City's proposal to
create a similar two-tiered system for the
longevity and college
incentive programs found in Article 13
should not become a part of
the Collective Bargaining Agreement on the
publication of this
Award.
The
Association's proposal to amend Section 12.4 to
convert the maximum contribution to the
deferred compensation
program from $75 per month to a maximum of
7.65% is rejected. The
Arbitrator will award that effective January
1, 1998, the maximum
amount payable to the deferred compensation
program shall be
increased to $90 per month.
The
Arbitrator finds that after review of the evidence
and argument, as applied to the statutory
criteria that a 3%
increase effective January 1, 1996, on the
existing salary schedule
is justified for 1996. Further, an additional increase of 3.25%
effective January 1, 1997, is
warranted. The Arbitrator finds for
the third year of the contract that a CPI
driven formula is the
appropriate way in which to adjust wages for
1998. The Arbitrator
will award the City's proposal with the
modification that the
increase shall be by 90% of the change in
the Consumer Price Index
rather than the 80% proposed by the City.
The
adjustments ordered by the Arbitrator will set the
top pay for a first class police officer
effective January 1, 1996,
at $4,035 per month and $4,166 per month
effective January 1, 1997.
The sergeant's pay would be set at $5,042
per month effective
January 1, 1996, and $5,205 per month as of
January 1, 1997. The
reasoning of the Arbitrator--as guided by
the statutory criteria--
is set forth in the discussion which
follows.
Constitutional and
Statutory Authority of the Employer
Regarding
the factor of constitutional and statutory
authority of the City, no issues were raised
with respect to this
factor which would place the Award in
conflict with Washington law.
Stipulations of the Parties
The
parties reached agreement on a number of contract
provisions in dispute which were not the
subject of this interest
arbitration.
Beyond the resolution of contract disputes through
the negotiation process, there were no
significant stipulations of
the parties relevant to this interest
arbitration.
Comparability
In
a preliminary ruling, the Arbitrator
accepted the
City's list of ten cities (WC 10) as the
appropriate comparators in
deciding the wages for Everett police
officers for the 1996-98
Collective
Bargaining Agreement.
While the City's
list of
comparators is not perfect, the
Association's list of thirteen
cities, only one of which was located in
Washington is totally
unacceptable. As your Arbitrator previously noted, Everett
is not
a California city, and should not be treated
as such where there
are a sufficient number of Washington cities
with which to compare
Everett.
The
next topic to be addressed is the Association's
concept of "normalization." The Arbitrator holds the idea of
"normalization" or discounting of
Everett police officer salaries
for the purpose of making wage comparisons
was not shown to be a
valid method by which to evaluate wages paid
to police officers.
The use of a "normalization"
method is unprecedented in the context
of a wage determination before an interest
arbitrator in the state
of Washington.
Moreover,
discounting of the salaries earned by Everett
police officers was premised on the
purported idea that Everett
police officers work more hours per year
than their counterparts in
other cities. Even if that assumption is true, the hours of
work
for Everett officers is not an issue because
the parties resolved
that subject in bargaining. Therefore, the
Arbitrator will give no
weight
to the Association's wage studies
that utilized the
"normalization" concept.
When
measured against the WC 10, the
City's salary
studies established Everett ranks fifth
among the comparators at
the base wage for a top step police
officer. City Exhs.
7-G and H.
The members of this unit also enjoy
attractive longevity and
college
incentive programs which benefitted 124
of the 146
employees in the bargaining unit. Where incentives are earned by
a substantial majority of the bargaining
unit members, they are
properly a factor to be considered when
formulating an award on
wages.
In addition, premium pay provides further opportunity for
members to increase their earnings in the
specialty assignments.
Another
salary advantage for members of this bargaining
unit is the fact they move rapidly to the
top step of the salary
schedule.
The 24 month period required to reach the top step is
far shorter than demanded of officers in the
WC 10.
City
Exhibit 7-H shows the top step wages for a police
officer as of January 1, 1996, in the WC 10
to be:
Bellevue $4,013
Bellingham (95) $3,630
Kent
. . $4,015
Federal Way $4,164
Vancouver $3,832
Yakima $3,740
*Beaverton $3,647
*Gresham $3
, 643
Westminster $4,122
Whittier $4,161
Average $3,897
Everett
(1995 Salary) $3,917
Everett
(1996 Salary with 3%) $4,035
*The Arbitrator modified the Beaverton and
Gresham salaries to reflect the July 1,
1996,
increases.
The
Association also conducted a top step wage analysis
of the WC 10. Assn. Ex. 61. The Association calculated the
average wage to be $3,883. The primary difference between the two
top step wage comparisons was the
Association's study showed the
top step for Gresham at $3,643 and Beaverton
at $3,647. Oregon
salaries are typically adjusted on July 1
rather than January 1 of
the calendar year. The Association also did not use the merit
step
of the nonunion officers at Federal Way in
its calculations.
The
Arbitrator believes the July 1, 1996, adjustments for
the two Oregon cities should be included in
the computation of the
base wage study. With the 1996 adjustments for Beaverton and
Gresham, the average salary paid at the top
step for the WC 10 in
1996 was $3,897. Everett's 1995 top step wage of $3,917 is
right
at the average of the WC 10. Stated another way, Everett ranks
sixth in the overall standing of the WC 10
for wages paid to a top
step police officer before any wage
adjustment is added for 1996.
The
1996 settlement for Bellingham was not available at
the time the record was closed, so the
$3,630 per month figure for
Bellingham is a 1995 wage. This of course pulls the 1996 average
down.
The absence of the PERS pickup for Oregon cities also
reduces the average salary figure. While the
lack of current data,
and different points of comparison are
weaknesses inherent in any
salary study, the salary data produced by
the City provides a
reliable source of information on which to
base this award.
The
3% awarded for 1996 will increase the top step wage
for a police officer to $4,035 per month, or
$138 above the average
monthly wage in the WC 10. The $4,035 per month salary for 1996
will be almost identical with Bellevue at
$4,013 and Kent at $4,015
per month.
Maintaining Everett police officer salaries at parity
with those two neighboring cities is in the
best interest of
Everett and EPOA. For 1996 Everett police officers would be
ranked
fourth in top step wage of the WC 10.
The
City argued strenuously that longevity should be
properly factored into the wage
equation. The Arbitrator was not
convinced that the City's attempt to use the
longevity and college
incentives as a method to justify a wage
freeze for 1996 was
particularly compelling. A review of City Exhibit 7-R reveals
Everett police officers rank number three or
four with longevity
pay added, from the base year until 24 years
of service, where the
Everett officer moves up to the number two
spot in the WC 10. The
Arbitrator
holds with longevity pay
included, Everett is
competitively ranked in salaries paid among
the WC 10. The
Arbitrator further finds there is no basis
to conclude that Everett
police
officer's compensation with
longevity incentives is
excessive or out of line with the WC 10.
The
salary trends for 1996 would appear to follow through
for 1997.
However, at the time the record was closed in this
matter not all of the 1997 settlements were
available for the WC
10.
The Kent police officer's contract implemented a 3.5% increase
effective January 1, 1997. The evidence of 1997 settlements showed
Bellevue with a 90% of CPI-W formula, with a
minimum of 3% and a
maximum of 6%. Yakima officers will receive a total increase
in
1997 of 4.5% Gresham officers will see a similar 100%
CPI
formula, guaranteeing a minimum of 2.5% and
a maximum of 5% salary
increase.
In Whittier the raise will be 3.5% for 1997. Assn. Ex.
216. The 2.5%
offered by the City would not
maintain the
competitive position in the rankings of the
WC 10 or be consistent
with the settlement trends in those cities.
The
3.25% awarded by the Arbitrator will maintain the
competitive position for Everett police
officers in the WC 10.
With the 3.25% added to the base effective
January 1, 1997, the top
step officer will be paid $4,166 per month
in 1997 without
incentives or premium pay. The top salary paid in Kent for 1997
will be $4,155. In Bellevue the maximum salary for 1997 is
set at
$4,133.
The top step salaries paid in these three key cities will
be within $33 of each other for 1997.
The
City proposal to establish the 1998 increase on a
formula based on 80% of the CPI creates an
excessive discount from
the CPI formula. With the Arbitrator's modification of the
City's
proposed formula providing for a third year
increase of 90% of the
CPI,
the respective interests and needs of both parties are
recognized.
Turning
to the sergeants, the evidence established this
is a well-paid group of employees While the Arbitrator rejected
the City's proposal to establish a separate
progression schedule
for new hires, which included sergeants,
this is an appropriate
subject for future negotiations. There is some merit to placing
new sergeants on a 24 month progression
schedule.
In reaching
a conclusion on the wage
issue, the
Arbitrator was mindful of the additional pay
members of this unit
earn under the incentive plans. The Arbitrator rejected the City's
proposal
to drastically change
the incentive plan
for new
employees.
The continuation of the generous incentive plans will
provide additional dollars for the members
of this unit. On the
other hand, premium pay for MPOs will be rolled back to the 1994
level.
The Arbitrator also took into account in framing the award
on salaries that members of this unit will
continue to enjoy fully
paid medical, dental and vision insurance
programs for the duration
of the 1996-98 contract.
Cost of Living
Turning
to the factor of cost of living, the evidence
overwhelmingly supports a wage settlement
closer to the City's
position than the amount sought by the
Association. In addition,
the cost of living factor provides
absolutely no support for the
Association proposed increases of CPI-W plus
2% for each of the
three years of the contract. The City's offer to freeze wages for
1996 runs counter to the cost of living
factor. When the cost of
living factor is combined with the fact that
wage freezes were not
the norm in the WC 10, the proposal for no
increase in 1996 is
unacceptable.
The
City's evidence revealed that the CPI-U has recorded
changes in recent years ranging from 2.9% to
3.3%. City Ex. 7-
Attachments HH through LL. The award of this Arbitrator on wages
over the term of this Collective Bargaining
Agreement is consistent
with those increases reflected in the
CPI. The Association's
proposals for a full CPI plus 2% for each of
the three years of the
contract are totally without merit. There is no requirement in the
statute, nor is it an accepted
labor-management principle that
employees are entitled to increases equal to
the amounts recorded
in the CPI.
The Arbitrator has accepted the City's proposal with
modification that a full CPI increase for
1998 should not be
awarded.
When the amounts awarded by the Arbitrator to the salary
schedule are combined with the other economic
benefits provided to
the members of this bargaining unit, they
will be well protected
from any loss of purchasing power due to
inflation.
Changes in Circumstances During the Pendency
of the Proceedings
The
only relevant change in circumstance is the wage
increases received by officers in the
comparable cities during the
course of the bargaining of this
contract. Since the bargaining
for this contract has extended over a
substantial period of time,
the parties and the Arbitrator had the
benefit of being able to
review wage increases agreed to in the WC
10. The settlement trend
in the City's list of comparators for 1996
ranged from a low of
3.2% in Bellevue to a high of 4% in Yakima
on base wages. A
similar pattern of wage settlement
agreements for 1997 exists which
shows base wage increases for Bellevue at
3%, Kent 3.5% and Yakima
at 4.5%
Assn. Ex. 212. In addition,
Gresham police officers will
benefit from the 4% increase generated by
the CPI. Assn. Ex. 16.
Westminster police officers will benefit
from a minimum increase of
1% to a maximum of 3%. City Ex. 5.
The Whittier adjustment for
1997 will be 2.5% plus a 1% labor market
adjustment. City Ex. 5
The Beaverton police contract calls for an
increase effective JuLy
1, 1996, based on a full CPI-W formula, with
a minimum of 3% and a
maximum of 4.5%. City Ex. 5.
The settlement trends on the base
for the WC 10 provide persuasive evidence
that the Association's
wage proposal is totally without merit. On the other hand, the
City's proposal for a wage freeze in 1996
does not comport with any
of its comparator jurisdictions. Further, the City's 2.5% offer
for
1997 is slightly
below market in the
City's list of
comparators.
The Arbitrator's award of 3% for 1996 and 3.25% for
1997 is consistent with the settlement
trends in the WC 10.
Other Traditional Factors
A
host of potential guidelines are suggested by the
catchall of "other factors . . .
normally or traditionally taken
into
consideration in the
determination of wage,
hours and
conditions of employment." RCW 41.56.465(1) (f) . As this case was
driven by the comparability factor, neither
party made a strong
argument there were "other
factors" at play in this dispute which
would override the enumerated statutory
criteria.
The issue
of internal comparability
is of some
significance to the resolution of this
dispute. The Association
proposal to increase wages by 100% of the
Seattle CPI-W plus 2% in
each of the three years of the 1996-98
contract was not supported
by compelling evidence to justify an
increase of this magnitude.
The City offered no evidence that it froze
wages for any other
group of City employees. The award of the Arbitrator is consistent
with the City's treatment of other
employees.
The
evidence offered by the Association was compelling
that the economic health of the local
economy is strong. The data
also is convincing that economic and
population growth in the City
will continue in the foreseeable
future. There is nothing in the
record before this Arbitrator which compels
a conclusion that
generate sufficient revenues to support
modest wage increases for
its police officers. All of
the record evidence points to
continued economic prosperity in
Pension Fund
Section
12.4 was first introduced into the relationship
by the 1993-95 contract. The provision for a Section 457 Deferred
Compensation program was done in lieu of
FICA contributions. The
$75 has remained constant since the program
was first adopted in
1993.
While the Arbitrator concurs with
the City that the
Association' s proposal is excessive and
should not be awarded, the
Arbitrator was persuaded that some
adjustment should be made
effective
fixed dollar format currently provided for
but I will increase the
maximum amount to $90 monthly.
Change in the Structure of the Salary Schedule
The
parties have maintained one salary schedule for the
City's police officers throughout the
existence of the collective
bargaining relationship. The Arbitrator holds that the City failed
to present sufficient evidence to justify
the establishment of two
separate salary schedules for the members of
this bargaining unit
The potential for future conflicts between
members is an inherent
defect in the creation of a two-tier wage
structure. Lastly, a
review of the collective bargaining
agreements for the City's
comparator jurisdictions reveals that
two-tier wage schedules are
not the norm. Therefore,
the Arbitrator will award that the
existing structure of the salary schedule
remain unchanged for the
duration of this Collective Bargaining
Agreement.
Article 13
Longevity and College Incentive
For
the same reasons stated above, Article 13 should
continue unchanged in the 1996-98 Collective
Bargaining Agreement.
AWARD
The Arbitrator awards as follows:
1. The
City's proposal to establish a new
wage schedule for employees hired after the
date of this Award is rejected.
2. The
City's proposal to modify Article 13
to
create a new
longevity and college
incentive program for officers hired after
the
date of this Award is rejected. Article 13
shall continue unchanged for the duration of
the 1996-98 Collective Bargaining Agreement.
3. Article
12 - Salary Schedule shall be
modified to state:
ARTICLE 12 SALARY SCHEDULE
12.1 1996 Salary Schedule.
12.1.1 Effective
salary schedule for the Association shall be
increased
by three percent
(3%) . The
following shall be the schedule of monthly
salaries for calendar year 1996:
Classification Range Third Second First
Title No. Class Class Class
MONTHLY RATE
Police Officer 03-021 3077 3370 4035
Sergeant 03-012 5043
Salary progression intervals are twelve (12)
months between steps.
12.2 1997 Salary Schedule.
12.2.1 Effective
monthly salary schedule for the Association
shall be increased by three and one-quarter
percent (3.25%) . The following shall be the
schedule of monthly salaries for the
calendar
year 1997:
Classification Range Third Second First
Title No. Class Class Class
MONTHLY RATE
Police Officer 03-021 3177 3479 4165
Sergeant 03-012 5207
Salary progression intervals are twelve (12)
months between steps.
12.3 1998 Salary Formula.
12.3.1 Effective
respective
1997 salary schedules
shall be
increased by ninety percent (90%)
of the
percentage change in the Consumer Price
Index
(CPI-U) (1982-1984=100) for the
Seattle-Tacoma
area for the first half of the 1996 semi-
annual average to the first half of 1997
semi-
annual average.
12.4 Pension Fund.
In lieu of FICA contributions, the City will
match
contributions made by
Association
members
into a City-sponsored Section 457
Deferred Compensation Program, up to a
maximum
of seventy-five dollars ($75.00) monthly to
be
paid as a matching maximum of up to thirty-
four
dollars sixty-two cents
($34.62) bi-
weekly.
Effective
contribution
shall be increased to ninety
dollars ($90.00) monthly.
ISSUE 3 - SPECIALTY PAY
A. Background
The
specialty pay issue involves two major areas of
dispute.
The first area concerns general issues over pay and
program
administration. Article 14
addresses the issue
of
specialty
assignments and pay for performing work in
those
specialty categories. Examples of specialty assignments for which
additional compensation is provided are Bomb
Technicians, Tactical
Team Members, Motorcycle Patrol
Officers, Investigations, etc.
Article 14.2.1 provides that officers
assigned to the specialty
categories are to be paid 4% above the first
class officers base
monthly wage. The City seeks to convert the 4% premium into
a
fixed dollar amount.
In
order to qualify for additional compensation in a
specialty assignment, the officer must be
trained in the specialty
and is required to maintain skill levels as
determined by the Chief
of
Police. The assignment
to and removal
from specialty
assignments is at the "sole discretion
of the Chief of Police."
The Association proposed to modify
Article 14 to
limit the
discretion
of the chief
to remove employees
from specialty
positions.
The
second area of dispute in this issue is over a Master
Police Officer ("MPO") program
established for the first time in
the 1993-95 contract. Master Police Officers are paid 15% above
the first class officer base monthly
rate. The City agreed to
staff assignments to the MPO program on a
one-to-one basis with the
number of sergeants within the police
department. The primary
purpose of MPOs is
to act as training officers and as first line
supervisors in the absence of a sergeant.
Both
the City and the Association have proposed changes,
additions and modifications to Article
14. The Arbitrator will
decide the specialty pay topic and MPO
issues separately.
B. The
City
Specialty Pay (General)
The
City proposed to add to Section 14.1.1 a sentence
which would discontinue specialty pay for a
member not performing
full specialty duties due to any absence
other than on-the-job
injury, vacation or compensatory time off.
The City would continue
Section 14.1.2, and Section 14.1.3 and place
the current Letter of
Understanding regarding canine handler
compensation in the body of
the contract to reflect the current
practice. The major change
proposed by the City was to convert the
current rate of pay of 4%
for specialty assignments to a flat dollar
amount. If the City's
proposal was adopted, specialty assignments
would be paid a premium
of $150 per month.
The City
asserts the proposed
canine language is
consistent with the May 12, 1993, Letter of Understanding and
clarifies present practice. The Association
voiced no objection to
placing
the City's proposed language in the contract.
The
Arbitrator should award the City's proposed
canine language as a
matter of clarifying present practice.
Turning to
the City's proposal
to convert the 4%
specialty pay to the dollar value of $150
per month, the City
asserts that it would remain among the elite
in the number of
premium pay categories provided in the
comparators. The average
number of premium pay assignments is
six. The City of Everett
provides premium pay for nine specialty
assignments. The same is
true if the amount of additional specialty
pay is compared with the
other cities.
Moreover, the City argued that the advantage of the
dollar value for these premium pays is that
it allows the parties
to discuss the value of the various forms of
specialty pay on a
periodic basis. The City submits that premium pay should be
decoupled from monthly base pay, rather than
having an automatic
adjustment each time the monthly salary
schedule is increased.
The
City objects to the Association's proposal to strip
proficiency requirements contained in
Section 14.1.2 from the
contract.
According to the City, the public would suffer if there
were no requirements that officers maintain
skill levels in order
to receive specialty pay. Further, the elimination of the three-
month probationary period for detectives
would impair the ability
of
the City to evaluate the
performance of officers in the
investigations specialty assignment.
The
City also objects to the Association's proposal to
delete the requirement that specialty
assignments are held at the
sole discretion of the Chief of Police. The City sees no benefit
of
having the only
basis for reassignment
to be that
of
disciplinary cause. In addition, the City questions how specialty
assignments would be made in the first place
if the language was
deleted from the contract. The deletion of this language would
leave the parties in a situation of
uncertainty regarding the
assignment and removal from specialty
duties.
In
sum, the Arbitrator should reject the Association's
attempt
to delete valuable language from the contract. The
Arbitrator should award the City's proposed
changes and continue
Section 14.1.2 and Section 14.1.3 unchanged.
Master Police Officers
The
City proposed to delete all of the language found in
Article 14.3 regarding Master Police
Officers. The City proposed
that new language be added to the contract
to read as follows:
14.2.2 Master
Police Officer specialty
assignment
shall be paid seven percent (7%)
above
the first class officers Base Monthly
Salary.
The City's proposal would also delete the
current compensation
schedule of 15% as the rate of pay for a MPO
assignment.
The
City has two primary objections to the current
language.
First, the City objects to the staffing requirements
which requires the MPO program to be on a
one-to-one basis with the
number of
sergeants within the police department.
The City
considers
it senseless and irresponsible to
continue the
overstaffing that results from the
contractual staffing mandate.
The City submits that an appropriate MPO
staffing level can be
governed by sound management determination.
The
second objection of the City is to the preexisting
contract scale of the
the City, the 15% premium or $588 per month
is indefensible. The
City argues that the $7,056 annual premium
for a MPO is excessive
and unreasonable. None of the comparable jurisdictions provide
a
level of compensation that is even close to
what the
program generates to officers in additional
income. In fact, the
only other comparable city with a MPO
program is
two MPOs.
The
City next argues that the bargaining history over the
MPO program reveals that it was not a good
idea from the beginning.
Experience has proven that the MPO program
has not been effective
in
improving the efficiency of delivery of law enforcement
services.
There is no logic to having 22 MPOs just
because the
City has 22 sergeants. The City concludes that the uniqueness of
of pay for the MPO assignments demonstrates
that the contractual
requirements of this program should be
deleted from the successor
Agreement.
C. The
Association
Specialty Pay (General)
The
Association proposed to delete Section l4.1.2 and
Section 14.1.3 from the Collective
Bargaining Agreement. In the
view of the Association, its proposal is
offered to clarify that
discipline--including disciplinary
transfers--are subject to the
just cause and grievance procedure sections
of the contract. The
ability to arbitrate discipline on the just
cause standard is one
of the most fundamental rights in a labor
agreement. Arbitrators
have almost uniformly held that arbitration
of discipline extends
to the right to arbitrate transfers which
are disciplinary in
nature.
The City offered absolutely no evidence in defense of this
poorly drafted language. The Association's goal is simple and
straightforward: it wishes to have the right
to grieve disciplinary
transfers.
Regarding
the City's argument, the Association asserts
the City simply misunderstands what the
Association seeks. The
Association does not seek to interfere with the
Chief's right to
make the initial assignment or to transfer
officers between
assignments for legitimate operational
reasons. The contract
should not contain a specific exemption from
the just cause
standard when officers are removed from
special assignments for
disciplinary reasons.
The
Arbitrator should reject the City's proposal to
convert the premium pay from a percentage
basis to a flat dollar
basis.
The Association found no arbitration awards where an
arbitrator ever converted specialty premiums
back in the manner the
City proposes. The City's own expert, Cabot Dow, said that
he had
never seen that happen in his many years of
negotiation. The
percentage method serves the parties well
and it preserves the
value of the premium. By using a percentage amount, it eliminates
the need to renegotiate these premium items
on a case by case
basis.
Hence, the Arbitrator should continue the current language
establishing the pay for specialty
assignments as 4% above the
first class officers base monthly wage.
Master Police Officers
The
Association maintains the City failed to carry its
burden of proof that the previously
negotiated MPO program should
be slashed or that the premiums should be
significantly reduced.
Although the Association does not contest
the theory of the police
administrators who testified they had
problems with the program,
the City failed to demonstrate it first
undertook reasonable steps
to try to fix the problems under the current
language. Where the
evidence reveals that alternatives are
available to remedy problems
with contract language, arbitrators have rejected proposals to
totally eliminate the language from the
contract.
The
Association avers that the real reason that the City
wants to diminish the program is that some
officers chose to
exercise their legal rights to acquire civil
service status for
themselves and filed a lawsuit against the
City. There were no
discussions about cutting back the MPO
program until after the
lawsuit was filed. Since the filing of the lawsuit, the City has
persisted in a negative reaction to the MPO
plan and has not
attempted to work with the Association in
improving the plan or
the benefit of the City and the members.
The
Association next argues that it made significant
concessions in order to acquire the MPO
position. According to the
Association, it should not be forced to give
up a bargained for
benefit when a new administration comes into
office and changes its
mind about the value of the program. One of the primary purposes
of interest arbitration is to protect police
officers from policy
vacillations caused by changes in elected
leaders.
Moreover,
the current program offers many benefits to the
City that would be lost or at least
diminished with the City's
proposal.
MPOs are looked upon as leaders within their
squad and
are able to perform more effectively as a
result. Time served as
MPOs has
helped those individuals
to further develop
their
supervisory skills The result is that these individuals are
more
likely to be promoted to sergeant because of
the MPO experience.
When the MPOs are
promoted they are able to acquire efficiencies as
sergeants
much more quickly
than existed without
the MPO
background.
Further, increases in Everett Police Department
workload also supports the continuation of
the MPOs. The
evidence
established MPOs
are called upon with increasing frequency to be in
charge of a scene. As the demand for law enforcement services
grows, the usefulness of the program
increases significantly.
The
Arbitrator should also reject the City's proposal to
eliminate the requirements for the ratio of MPOs to sergeants.
It
was the City who agreed to a certain ratio in lieu of defined
specifications for MPOs. The City's proposal is flawed because it
offers no new specifications that would
reasonably ensure officers
there would be realistic MPO
opportunities. Nor has the City made
a clear case for the need to actually reduce
the number of MPOs.
For
all of the above stated reasons, the
Arbitrator
should reject the City's proposals to modify
Article 14 and award
the Association's proposals on this issue.
D. Discussion
and Findings
Specialty Pay (General)
The
Arbitrator finds the City's proposal to add language
to Section 14.1.1 requiring full performance
of specialty duties by
the employee in order to receive the premium
pay to be reasonable.
If an officer cannot perform the full range
of duties of a
specialty position, there is no
justification for continuing the
specialty premium pay. The City's proposal preserves the premium
where the absence from work is for "an
on-the-job injury, vacation
or compensatory time off."
The
Arbitrator holds the Association's proposal to delete
Section 14.1.2 and Section 14.1.3 as a means
to attain just cause
protection in cases of removal from a
specialty assignment should
not be adopted. Section 14.1.2 requires an officer must be
trained
and maintain skill levels in order to retain
the specialty pay. In
the judgment of this Arbitrator, if an
officer is going to receive
specialty pay, the officer should possess the current skills
necessary to perform the specialty
assignment. It would not be in
the public interest to have a "Bomb
Technician" who was untrained
in the job, and without the current skills
to safely perform the
work.
The
Association proposed to delete Section 14.1.3 from
the contract. This provision vests sole discretion in the
Chief of
Police to decide who will receive a
specialty assignment and when
an officer may be terminated from the assignment. By striking the
language from the contract, the Association
would attain far more
than the ability to grieve disciplinary
transfers. Without Section
14.1.3, the contract becomes unclear as to
how an officer would be
selected or removed from a specialty
assignment. The nature of the
work in specialty assignments is too
important to be left to
chance.
The
Arbitrator concurs with the City on this issue, with
one exception. The one exception being the ability to
grieve
disciplinary removal from a specialty
assignment. The City is
correct that it should retain the exclusive
prerogative to make
changes in specialty assignments for operational
reasons. In its
post-hearing brief, the Association stated
it was not seeking the
ability to grieve reassignments made for
operational reasons.
The
Arbitrator finds that where an officer is removed
from a specialty assignment for disciplinary
reasons there should
be the ability to grieve the
"disassociation" from the specialty
assignment. Absent from this record are any
compelling reasons why
removal from a specialty assignment for
disciplinary reasons should
be carved out as an exception to the
Association's right to grieve
an alleged violation of the contract. The Arbitrator will award
language to modify Section 14.1.3 to allow
the ability to grieve
removal from a specialty assignment for
"disciplinary reasons."
The
language added by the Arbitrator is not intended to
restrict the prerogative of the Chief of
Police to appoint officers
to
specialty assignments or to make changes
for operational
reasons.
The single exception created by the new language is to
allow for a grievance when the City seeks to
impose discipline on
an officer in the form of a removal from a
specialty position. If
the Association believes the removal from a
specialty assignment
was pretextual,
that can be sorted out in the grievance procedure.
The
Arbitrator finds the City's proposal to amend Section
14.2.1 to convert specialty pay from a
percentage to a fixed dollar
amount is without merit. The percentage method has served the
parties well. Both parties recognize the worth and benefit
to the
citizens of
services.
The dispute here is over how the officers should be
compensated.
The
percentage method of compensation preserves the value
of the specialty premium over the term of
the contract. While
there might be some merit to the City's
position the premium pay is
high, the conversion to a fixed dollar
system is not the way to
address the subject. Renegotiations of fixed dollar premiums on a
case by case basis creates unnecessary
conflict. Adjustments in
the rate of compensation through changes in
the percentage amount
would be an appropriate subject for future
negotiations.
The
Arbitrator holds the City's proposal to add canine
maintenance language to Article 14 should be
adopted. Canine
handlers represent a unique specialty
assignment. The compensation
for canine maintenance should be expressly
spelled out in the
contract.
The City's proposed language is consistent with a prior
Letter of Understanding and clarifies
current practice. No major
objection was raised by the Association to
the City's proposed
canine language. Therefore, the Arbitrator will enter an award
to
add the canine maintenance language to
Section 14.2.1.
Master Police Officers
The
Arbitrator finds the City's evidence established the
MPO program is in need of substantial
repair. However, the
Arbitrator was not persuaded to adopt the
City's proposed changes.
In essence, the City's modified language
would pave the way to
terminate the MPO program. Also, MPOs who
remained in the program
would have their compensation reduced by
50%.
The
Arbitrator will modify the current language.
The
language awarded will grant the City greater
flexibility and still
allow the program to function. With
approximately one and one-half
years remaining on the 1996-98 Collective
Bargaining Agreement, the
adjustments
will allow the
parties the opportunity
to make
operational improvements in the MPO
program. If the problems with
the MPO program cannot be fixed, then the
parties are free to
negotiate an end to the program in the next
round of bargaining.
The
City's evidence established the one-to-one staffing
ratio of MPOs to
sergeants was without any business justification.
The Association failed to contradict the
City's evidence there was
insufficient work for 22 MPOs. The Arbitrator will enter an award
reducing the staffing ratio to one MPO for
every two sergeants. By
reducing the number of MPOs
by one-half, the City will be able to
place officers in assignments where they
will be most useful.
Section
14.2.2 established a pay schedule for MPOs based
on a percentage rate of a first class
officers base pay. The MPO
premium was set at 5% in 1993, 10% in 1994
and 15% in 1995. The
15% premium for MPOs
is totally without support in the comparator
jurisdictions. The Arbitrator will order the MPO premium
rolled
back to the 1994 level of 10%, effective
AWARD
The
Arbitrator awards with respect to Article 14 as
follows:
1. Section
14.1.1 shall be amended by adding
language to state:
Any member not performing full performance
specialty duties due to any absence other
than
an on-the-job injury, vacation or
compensatory
time off shall not receive the additional
pay.
2. Section
14.1.2 shall continue unchanged in
the 1996-98 Collective Bargaining Agreement.
3. Section
14.1.3 shall be amended to read:
Assignments and disassociation for
operational
reasons, to the special additional duties as
enumerated in this Article1 shall rest in
the
sole
discretion of the
Chief of Police.
Disassociation from specialty assignments
for
disciplinary reasons shall be subject to the
grievance procedure.
4. Section
14.1.4 and Section 14.1.5 shall
continue unchanged in the 1996-98 Collective
Bargaining Agreement.
5. The City's
proposal to add
canine
maintenance
language to Section 14.2.1 is
awarded.
The language shall read as follows:
14.2.1 Specialty
assignments to be paid 4%
above the first class officers Base Monthly
Wage, include:
Bomb
Technicians
Tactical
Team Members
Dive
Team Members
*Canine
Handlers
Hostage
Negotiators
Tactical
Team Coordinators
Investigations
Motorcycle
Patrol Officers
*Canine maintenance compensation will be the
equivalent to one-half (1/2) hour per day,
work
days and days
off inclusive. The
Association
and City agree
that regular
assigned shifts will be shortened by one (1)
hour, i.e., the current twelve (12) hour
shift
will be changed to an eleven (11) hour
shift.
The one (1) hour is for one-half (1/2) hour
maintenance on that work day and one-half
(1/2) hour for routine maintenance days off.
Therefore, canine officer(s) shall be
granted
three and one-half (3 1/2) hours per week
for
the time it is necessary for the officer to
spend
to care, groom
feed, maintain,
transport, etc. the dog during off-duty
hours.
Any such non-regular duty work in excess of
the above shall require advance approval
from
the Police Chief or his designee.
6. Section
14.2.2 shall be revised to read:
Effective
Officer specialty assignment shall be paid
at
the rate of 10% above the first class
officer
base monthly rate.
7. Section 14.3,
Master Police Officer
provision shall continue unchanged with one
exception.
The second sertence of Section
14.3.1 shall be amended to provide as
follows:
The City agrees to staff assignments in the
MPO program on a one-to-two basis with the
number
of Sergeants within
the Police
Department.
ISSUE 4 SICK
LEAVE
A. Background
The
subject of sick leave is addressed in Article 24 of
the
current contract. LEOFF
I employees receive disability
benefits provided by Chapter 41.26 RCW in
lieu of the benefits
provided in Section 24.2 and Section 24.3 of
the contract. LEOFF
II employees accrue 156 hours of sick leave
up to a maximum of 1040
hours.
Section
24.3.1 defines sick leave use as follows:
A. personal
illness or physical incapacity
resulting from a cause beyond the member's
control;
B. forced
quarantine of the member;
C.
medical, dental, or ocular appointments
with advanced supervisory approval.
The City would continue current contract
language. The Association
proposed to expand the definition of sick
leave use and to provide
for a sick leave accrual incentive.
B. The
Association
The
Association proposed to add a new definition for when
sick leave could be used which read:
D. Illness
of spouse or minor dependent
children.
The
Association would also add language which stated:
24.4 Sick
Leave Accrual Incentive.
24.4.1 Employees
shall be allowed upon
separation
or retirement to receive in cash an
amount
equal to fifty percent (50%) of the
value of
their then existing
sick leave
accrual
balances.
The
Association framed the sick leave cashout as a
proposal to add an economic benefit for the
members. According to
the Association, the comparability data is a
predominant factor in
assessing this issue. The Association submits the comparability
data overwhelmingly supports its sick leave
accrual incentive
proposal.
The Association asserts that all of the local labor
market comparables have some kind of cashout or incentive benefits.
Even among the City's comparables, all but
cashout
benefit.
The
Association next argues that the lack of severance
benefits on retirement for
already existing poor retirement benefits
for the members of the
Association.
The City's contentions regarding the expense of this
proposal are misplaced because the money to
pay for this benefit
will not have to be allocated in a given
year. The members of this
bargaining unit will be retiring over the
next 15 to 20 years.
It
is also the position of the Association the City
exaggerates the generousness of existing
sick leave benefits.
While it is true that the annual accrual
rate of 156 hours per year
exceeds that of other jurisdictionsi
the City's sick leave cap
ultimately controls the amount of time that
can be accrued. The
cap is in line with other jurisdictions even
before consideration
is given to the fact
Turning to the issue of the definition of
sick leave use,
the Association proposes to extend this
leave to other family
members.
The Association reasons that the City's reliance on the
family leave act is misplaced because the
act does not require that
time come out of the sick leave bank. The comparables demonstrate
that sick leave use for other family members
is an established
benefit.
The Arbitrator should reject the City's harsh and
regressive stand and award the Association's
proposal as it is
clearly in line with the comparable
jurisdictions.
C. The
City
The
City proposes no change to existing language.
In the
City's view,
the sick leave article is very generous as it
currently exists. The accrual rate of 156 hours per year for
LEOFF
II employees is extremely liberal when
compared with the other
cities.
LEOFF I employees are fully compensated for any and all
absences.
The 156 hours of sick leave that are accrued is 50%
greater than the mean of 104 hours per year
among comparable
cities.
The
50% cashout demand is not supported by the comparable
cities.
Of the City's comparables only
program, but
below 240
and 500 hours respectively.
jurisdiction with a cashout
at separation of 25%, and at retirement
or death of
50%, which is similar to that
proposed by the
Association.
No
other City employees receive a cashout for sick leave
accruals
on separation or
retirement. The cashout would
substantially impact the City's budget
because it will generate an
extremely high cost. A 50% cashout of
Association unit sick leave
accrual as of December 21, 1996, would
translate into the stunning
sum of $1,218,103 in 1996 dollars.
Turning to the Association's proposal to expand the
definition of sick leave usage, the City
takes the position that
this issue is adequately addressed under the
Federal Family and
Medical Leave Act of 1993 and City policy. Under the current
program an employer has the ability to take
time off for serious
health conditions of a spouse and may choose
to be in paid status
by using either vacation or compensatory
time off. The City also
has a progressive shared leave program. The City already allows
usage of sick leave for child illness
pursuant to Child Care Leave
under RCW 40.12.270. The Association's language would appear to be
unlimited in nature. The policy embraced by the statute provides
sick leave may be used in cases of "a
health condition that
requires treatment or supervision" for
a dependent child under the
age of 18, and sets reasonable limits for
sick leave use.
In
sum, the comparable cities do not support either the
expansion of sick leave usage to spousal
illnesses or sick leave
usage for child care purposes.
D. Discussion
and Findings
The
starting point for the review of this issue is the
recognition the Arbitrator has identified
the City's list of west
coast cities as the benchmark by which to
review the terms and
conditions of employment that should be put
in place for the
members of this bargaining unit. Under the current contract
Everett police officers accrue 156 hours of
sick leave per year, up
to a maximum of 1040. City Ex. 11.
The majority of the comparator
jurisdictions provide for an accrual rate of
96 hours per year with
Kent and Vancouver at 120 hours per
year. The average is 104 hours
per year.
The
City also compares favorably on the maximum number of
hours per year that can be accrued at
1040. Three of the
comparators have no limit and only two
jurisdictions provide for an
accrual rate in excess of 1040 hours as
allowed for members of this
bargaining unit. A review of the City's comparables on the
topic
of cashout at severance
or retirement reveals that in some form
this benefit is enjoyed by officers in the
majority of the
comparables.
Yakima appears to have a program in line with what
the Association is seeking in this
case. However, the majority of
the west coast cities provide for a lesser cashout benefit on
severance or retirement.
The
Arbitrator is convinced that there is merit to a
program which provides an incentive for
employees to avoid using
their sick leave. The sick leave accrual incentive should only
be
payable at the death or retirement of the
employee. The Arbitrator
views this as a long-term program which
should not be available
when an employee leaves City employment
prior to retirement or
death.
The City's comparables provide evidence that some form of
cashout
is a benefit enjoyed by police officers employed in the
comparable west coast cities.
The
Arbitrator concurs with the City that the program
proposed
by the Association
would yield an
excessive and
unreasonable amount of extra money at
retirement or severance. The
Arbitrator will modify the Association's
language to provide for a
program similar to that offered in
the
Arbitrator will limit the cashout to the
situation of
retirement or death of the employee. The cashout will be
limited
to 50% of the employee's value of the
existing sick leave accrual
balance up to a maximum of 520 hours. By limiting eligibility for
participation in the program and placing a
cap on the number of
hours an employee may cashout,
the financial impact on the City
will be substantially reduced.
The
Arbitrator finds that the Association's proposal to
expand the definition of sick leave to
provide for use for the
illness of a spouse or minor dependent
children should not be
adopted.
The issue is already addressed per the FMLA and state
law.
Adoption of the Association's proposal would expand the
parameters for the use of sick leave beyond
that which an employee
is entitled to by current law. The employee under the present
situation has the option to be in paid
status by using either
vacation or compensatory time off to allow
for paid time to care
for an ill spouse or child. The Association's proposal to provide
for the use of sick leave for the illness of
minor dependent
children is undefined. The Arbitrator finds this aspect of the
proposal objectionable on the ground of
vagueness. The Arbitrator
will award that Section 24.3.1 will remain
unchanged in the
successor Agreement.
AWARD
The Arbitrator awards as follows:
1. The
Association's proposal on sick leave
use is rejected and the current language
shall
continue unchanged in the 1996-98 Agreement.
2. The
Arbitrator awards that new language be
added to the contract which states as
follows:
24.4 Sick Leave Accrual Incentive
24.4.1 Employees shall
be allowed upon
retirement or death to receive in cash an
amount equal to fifty percent (50%) of the
value
of their then
existing sick leave
accrual balances up to a maximum of 520
hours.
ISSUE 5 - INSURANCE BENEFITS
A. Background
Insurance
benefits for members of this bargaining unit
are the subject of Article 26. Presently, the members of the EPOA
enjoy a benefit package which provides for
medical insurance,
dental insurance and vision insurance. The City pays the entire
cost of the coverage for the three benefits
for LEOFF II officers
and their legal dependents. LEOFF I officers pay the difference
between the NCAS plan and the cost of the EMOs. The City
established a self-insured medical insurance
program in 1994 known
as the NCAS plan.
The
City has agreed in Section 26.6.1 to sponsor a
disability insurance program through the
Standard Insurance Company
for all LEOFF II members. The responsibility for payment of the
premiums for this coverage rests with the
LEOFF II officers who are
required to participate. In addition, Section 26.6.2 requires all
officers to purchase a $10,000 life
insurance policy through the
Standard Insurance Company. The officers, not the City,
are
obligated to pay the premiums for disability
and life insurance.
The
dispute in this issue revolves around three main City
proposals.
First, the City would require LEOFF II officers who
wish to participate in the HMO plan to pay
the difference in
premium between the NCAS plan and the HMO
plans. Second, the City
also proposed the employees would pay 10% of
the dependent cost for
medical, vision and dental coverage. Third,
the City proposes that
a Letter of Understanding for the Positive
Incentive Plan ("PIP")
be awarded as part of the City's
proposal. The Association would
continue existing contract language.
B. The
City
The
City frames this issue as one of whether the
insurance benefit program should be modified
in such a manner as to
have employee co-pays to control costs and
to restrain insurance
cost escalation. The City proposed to do this by amending
Section
26.3.1 to read:
The City agrees to provide one hundred percent
(100%) of the premium cost toward the
purchase
of the City's self-insured medical insurance
program for employees and ninety percent
(90%)
of
such premium cost
for their legal
dependents.
LEOFF II employees shall have the
option of participating in either the Group
Health, HealthPlus
or the basic/major medical
program.
However, if the employee chooses a
carrier other than the City's self-insured
medical insurance program, the employee
shall
pay the premium difference.
Emphasis
added.
While the City would agree to continue to
pay 100% of the premium
cost towards the purchase of dental
insurance and vision insurance
for employees, the City would alter Section
26.4.1 and Section
26.5.1 to pay 90% of the dependent coverage
for the two insurance
benefits.
The same 90% figure would also apply to dependent
medical coverage.
The
City asserts that its proposals in this issue are
part of the comprehensive effort to
stabilize the escalation of
premium levels. The goal of the City has been to contain
health
insurance costs while maintaining a
competitive level of benefits.
The City's efforts over the past two years
have been successful in
maintaining lower costs in the NCAS plan to
which the City is
endeavoring to encourage participation by
this proposal. Since all
forecasts indicate that medical costs will
continue to spiral
upward, it is reasonable that this cost
containment measure be
adopted.
The.City would achieve this cost containment by agreeing
to pay 100% for the cost of its self-insured
NCAS program for
employees and 90% of the premium cost for
their legal dependents.
However, if the employee elected to
participate in Group Health,
HealthPlus
or the basic/major medical program the employee would
pay the premium difference between the
City's self-insurance
medical program and the alternative
programs. The term used by the
City to describe this was to require
officers to "buy-up" to the
HMOs.
The City points out that six of the ten comparable cities
offer higher cost options for medical
insurance to their police
officers but those officers who select such
options pay the
difference between the cost of the basic
plan and the cost of the
better plan.
LEOFF
I police officers have for several years paid the
difference between the City's
self-insured--NCAS plan--and the
HMOs.
The LEOFF I Police Pension Disability Board placed all LEOFF
I officers under the NCAS plan. As a result, a LEOFF I employee
who desires HMO coverage for himself/herself
and or dependents must
pay the buy-up. Other City labor contracts require the
insurance
buy-up for their members.
Regarding
the issue of dependent co-pays, City's evidence
shows that six of the WC 10 have a dependent
co-pay. Although
other City groups do not presently have a
specific dependent co-
pay, the ATU Local #883 started a 50% co-pay
for any yearly premium
increase effective January 1, 1997 It is the goal of the City to
achieve dependent co-pays in upcoming
negotiations with other
employee groups. There is a co-pay for LEOFF I employees in
both
police and fire where the employee chooses
HMO coverage.
In
1995 the City initiated a health benefits committee
consisting of representatives of all
employee groups. Through the
efforts
of the committee an employee incentive program was
developed that would assist in cost
containment. The PIP applied
only to employees under the NCAS plan. Pursuant to the PIP
program, savings in premium costs were
returned to employees. The
PIP payout for 1995 to members of the EPOA
totaled $17,746.92 or an
average of $267 per officer. The initial trial period for the PIP
was established for three years, 1995 to
1997 The City desires to
memorialize the PIP program parameters
within the terms of this
labor Agreement.
The
City responded to the Association's evidence with
three major claims. First, City asserts the Association really
did
not respond to the City's proposals but
instead relied on topics
not relevant to the issue of insurance. Second, the Association's
claim that it was allowed insufficient
information to evaluate the
City's proposals is misplaced. Third,
the testimony of the
Association expert witness served to point
out the Association's
misleading use of data.
Based
on all of the foregoing arguments, the Arbitrator
should award the City's proposal to modify
Article 26.
C. The
Association
The
Association alleges that the City has
proposed
dramatic changes in the health insurance
area. According to the
Association, the City must carry its burden
of proof to show these
changes are justified in light of recent
significant concessions
the Association made in the insurance
benefit area. After
reviewing the evidence, the Arbitrator should concur with the
Association's position and reject the City's
proposals.
The
Association argues that offering a HMO to employees
is not voluntary for the City but is
required by
The Association interprets the statute to
prevent the City from
charging more for the HMO than they would
for a primary health plan
except- -perhaps- -where there is an actual
difference in cost. If
the City could simply charge the employees
whatever they wished for
using a HMO, the statutory mandate of the
HMO option would be
rendered useless. The Association submits the intent of the
statute is that the employer would not pay
less for a HMO option,
if that option cost is less than a basic
plan.
The
City's proposal to reduce its contributions to
insurance programs cannot be viewed in a
vacuum. The Association
recently made significant concessions to the
status quo regarding
insurance issues. Therefore, Association
concessions constitute an
equitable factor which should be given
predominant weight when
evaluating the City's proposal to reduce its
contributions for
insurance premiums. This Association in
combination with the other
City unions gave the City over a million
dollars in concessions
which resulted in substantial cost savings
for the City in premium
dollars.
The City has failed to carry its burden that additional
change in the form of reduced contributions
to the insurance
program is justified.
The
Association next argues that the City failed to
provide timely and adequate information
which would have enabled it
to effectively evaluate the City's
proposal. Even the data which
was provided was often inaccurate. The City's failure to comply
with the Association's reasonable bargaining
information request
puts their proposal in a rather untenable
situation. Since the
City has not provided either the Association
or the Arbitrator with
sufficient information or any reasonable
calculations of what the
buy-up might be, the Arbitrator should
reject this proposal.
The
driving force behind the City's proposal is the
Association's unilateral agreement to allow
the City to create a
self-insurance plan which appears to cost
substantially less than
the prior plan. With the adoption of the self-insurance plan
the
City is provided the opportunity to
manipulate the rate structure
and allow it to create an appearance that
the HMOs might be more
expensive than the self-insurance plan. The City is using the
interest arbitration process as a "bludgeon" to attempt to force
the Association into
something to which it would
not ever
voluntarily agree.
It is
also the position
of the Association
that
comparability supports neither the buy-up
proposal or the dependent
contribution proposal. The Association believes that the medical
premium cost number is $378. A review of the comparables reveals
that not only on total dollar expenditures
but also on the extent
of the coverage the City fairs poorly. Most of the comparables do
not now require an employee contribution for
dependent insurance.
Further, the City's proposal is undercut by
the fact that most of
the comparables have paid life and
disability insurance protection.
Members of this bargaining unit have to pay
their own cost for life
and disability protection with no
contribution from the City.
Turning
to the City's offer to include the PIP Letter of
Understanding into the Collective Bargaining
Agreement, the City
views
this as a
carrot to make the dependent
contribution
palatable.
While the Association has no objection
of the
continuance of the current PIP benefit, it
just does not what to
give up anything for such a benefit as
uncertain in nature and
duration as the City proposes. The PIP expires at the end of 1997
which would pave the way for the City to
wipe out what might
otherwise be PIP rebates.
The
Arbitrator should find that the City is manipulating
the rates for the self-insurance program in
order to widen the gap
between the HMO rates. By manipulating the data, the City has
improperly paved the way to demand
contributions from employees who
elect to participate in the HMO program. The
City's objections are
not hidden.
The City is seeking to force people into the NCAS plan
by requiring
employee contributions for
those who elect to
participate in the HMOs. The Arbitrator should conclude the City
has failed to carry its burden of proof to
justify changes of the
magnitude contained in the City's offer.
D. Discussion
and Findings
The
Arbitrator finds the City has not demonstrated
sufficient justification for adopting the
proposed three major
changes to Article 26 for the 1996-98
contract. Cost containment
under the City's proposals is to require
employee contributions to
the
existing insurance programs. LEOFF
II members of the
bargaining unit currently pay the total
premium cost for life and
disability insurance. The City offered no persuasive reasons why
the members of this bargaining unit should
become the leader in
employee contributions to the insurance programs
from among the
City's union groups None of the other City groups have a specific
dependent co-pay.
A
review of the insurance plans provided in the WC 10
yields mixed support for the City's
proposals. Six of the ten
comparables offer higher cost options which
require the officer to
buy-up to more expensive plans. The same number holds true for
requiring dependent co-pay in six out of the
WC 10.
The Arbitrator
also gave some
credence to the
Association's arguments regarding lack of
information about the
financial details of the City's offer and
the other insurance
programs.
Further, the NCAS program is relatively new, having been
adopted in 1994. All City employee unions
cooperated in developing
the PIP and NCAS plans. EPOA made concessions during this process
of moving toward the self-insured plan.
Moreover,
the PIP plan will expire at the end of 1997.
At this point the future of the PIP is
unclear. By the end of the
1996-98 Collective Bargaining Agreement the
status of the PIP will
be decided.
Present in
Article 26, Insurance
Benefits, is a
comprehensive level of benefits available to
Association members
and their families. There are no issues before the Arbitrator
concerning the level of insurance
benefits. The focus of this
dispute is over who will pay for the costs
of the insurance
benefits.
In the judgment of this Arbitrator, there are too many
uncertainties surrounding the funding of the
insurance programs and
calculation of the buy-up amount to justify
adoption of the City's
proposals at the present time. Given the mixed support for the
City's offer both from the external and
internal comparators, the
Arbitrator will reject the City's proposal
and award current
language.
The
Arbitrator's conclusions on this issue should not be
taken as a finding the City's proposals are
without merit. The
trend is clearly moving in the direction of
employee contributions
to the insurance programs. The City's goal to encourage member
participation in the NCAS plan is valid and
should be pursued in
future negotiations. With this contract expiring in approximately
18 months the parties will have the
opportunity to examine the
insurance issue again. At that time the parties will have
substantially more experience and
information about costs and
benefits of the NCAS, PIP and HMOs.
The
days of 100% City payment for insurance benefits are
coming to an end. This award on the insurance issue should be
taken by Association members as a warning
that on the expiration of
the 1996-98 contract, the time will be ripe
to expect employee
contribution to the insurance programs.
AWARD
The
Arbitrator holds the City's proposal to
modify
Article 26 should not be adopted. The Arbitrator awards
current contract language shall continue
unchanged in the 1996-98
Agreement.
ISSUE 6 - VEHICLES
A. Background
The
1993-95 Collective Bargaining Agreement contains
language regarding the topic of City-owned
vehicles. At issue is
the subject of take-home vehicles being made
available to police
officers.
Both sides have made proposals to include a new Article
32 to address the topic of City
vehicles. The Association has
offered a comprehensive proposal requiring
the City to provide
take-home vehicles to all permanent sworn
officers. The City
countered with its own proposal which would
vest total discretion
with
City management regarding the
assignment of take-home
vehicles.
The
current practice in
officers and sergeants are assigned vehicles
which the officers may
take home.
The evidence reflects that 52 police vehicles are in
the take-home program. There are 19 marked and 33 unmarked
vehicles assigned to Association
members. The 12 patrol sergeants
share vehicles on the basis of two sergeants
per vehicle. With the
exception of two officers with public school
assignments, the 87
other sworn officers are not assigned their
own vehicle. The other
87 officers are for the most part assigned
to patrol, and share
patrol vehicles on a two per vehicle basis.
The
vast majority of Association members reside outside
the city limits of
Association members reside within the city
limits of
evidence
reflects that many of
the officers live
in areas
considerably distant from
B. The
Association
The
Association proposed that the current take-home
program would be expanded to provide
take-home vehicles to all
permanent sworn officers. However, participation in the home-car
program would be voluntary on the part of
the officers. The text
of the Association's proposal details a
comprehensive set of rules
regarding the personal use of the vehicles
and for the care and
maintenance of the vehicles by the
officers. The Association's
proposal also detailed the obligation of the
officers to respond to
calls while off duty. Pursuant to the Association proposal,
officers residing more than 25 miles from
the Department shall pay
all commuting miles in excess of 50 miles at
the current Internal
Revenue Service mileage rate. The
Association submits its proposal
is reasonable and supported by economic
analysis and operational
objectives.
The
Association's arguments are summarized as follows:
1. The
Association believes its proposal will
offer a large boost in employee morale for a
relatively
low cost. The
City has not
objected to the take-home car program in the
past based on program costs. The evidence
offered by the Association demonstrated that
officer morale has improved with a take-home
car program. Removal of the take-home car
program would have
a negative impact
on
morale.
2. The
proposal is supported by legitimate
operational reasons. By virtue of the take-
home car program detectives are often able
to
report directly to the site for interviewing
or evidence gathering, without having to go
back to the main station. The civil response
team carries equipment in cars which allows
them to report directly to the scene of an
accident.
Testimony at the
arbitration
hearing revealed that a number of officers
with take-home cars carry their equipment in
the vehicles as well. The bottom line is that
the
take-home car program
allows for
significant savings of time when reporting
to
a scene which requires a police presence.
3. The
assigned cars allow call responders to
report immediately to a call as they enter
or
leave the City.
4. The evidence showed that officers with
take-home
cars frequently assist
other
agencies on the way to and from home when it
is necessary. The Association asserts this is
helpful in maintaining good relationships
with
other police agencies.
5. Association
Exhibit 242 proves that many
jurisdictions around the nation have adopted
a
take-home vehicle program. The continuation
of such programs on a national scale reveals
the beneficial nature of the take-home cars.
6. The
Association maintains that adoption of
its proposal will help the City resolve a
lawsuit
alleging that off-the-clock
transportation of vehicles is unlawful under
the Federal Labor Standards Act. The officers
who are engaged in time spent retrieving,
servicing
and maintaining their
police
vehicles are entitled to compensation under
the Fair Labor Standards Act. The damages the
City faces under such a suit are significant
and the adoption of the Association proposed
vehicle language will help to alleviate the
problems facing the City with regard to the
lawsuit.
Turning to the City's proposal, the
Association argues it
is neither reasonable or lawful. According to the Association, the
City proposes that a "waiver" be
imposed on the Association
regarding a mandatory subject of
bargaining. The Association
reasons the City is seeking an order from
the Arbitrator waiving
bargaining rights on the subject of
take-home vehicles. The
Association submits waivers by definition
are something which
cannot be imposed through interest
arbitration.
In
sum, the weight of authority and evidence supports the
Association's proposal rather than the
City's position. The
Arbitrator should reject the City's proposal
as unreasonable and
unlawful and award the Association's
proposed language on vehicles.
C. The
City
The
City takes the position that the Association's
proposal
for mandatory take-home vehicles would establish an
extraordinary fringe benefit for each and
every first class police
officer and sergeant. The adoption of the Association's proposal
would require the City to purchase
approximately 40 vehicles and
increase the number of take-home vehicles by
approximately 69 as of
today, and 72 as of the end of January 1997.
The
City next argues that it is concerned about both cost
and the appearance of City-owned vehicles
traveling far outside of
majority of the members of the Association
live outside of the city
limits of
The
position of the City was summarized in the post-
hearing brief as follows:
a. The
EPOA's demands on this subject starkly
illustrate the unrealistic approach the EPOA
has brought to this interest arbitration
case.
The EPOA's demand
for one vehicle per officer
is ludicrous and must be rejected out of
hand.
The issue that remains, then, is the right
and
ability of the City to reasonably control-
-on
a public service basis- - the operational
use of
City-owned vehicles.
b. It
is operationally unnecessary for most
police officers to have a take-home vehicle.
c. The
EPOA's proposal would require a huge
initial outlay and would materially increase
the annual cost of the take-home vehicles.
This includes $l,000,000 to purchase and
equip
40
new patrol cars plus large additional
operating costs for the 69 (soon 72) more
vehicles used for commuting. Pertinent in
this regard is that only 44 EPOA members
live
in
d. The
contracts and practices of the
comparable cities emphatically support the
City's position and not the position of the
EPOA.
e.
Minimizing take-home vehicles
is
consistent
with practices in
other City
departments since 1994.
f. Fiscal responsibility and the public
perception
militate against take-home
vehicles.
g. The
City is aware of no rational basis for
a requirement that each "permanent
officer"
have
his/her own individually-assigned
vehicles.
h. The
wording of the EPOA proposal presents
a
variety of problems
of ambiguity,
inconsistency, and non-administrability. The
proposal
thus falls on
its own ponderous
weight.
Brief,
p. 86.
The
City believes that the assignment of take-home
vehicles should be based upon the nature of
the Department's
operational needs and hence is
discretionary. Although many
vehicles are currently taken home, the
Department considers that
the number is too high and that
approximately 15 take-home vehicles
are essential to meet the operational
demands of the Department.
The City calculated that a reduction of 37
vehicles would represent
an annual cost savings of $76,360 per
year. Therefore, the City
responded to the Association's proposal with
its own language which
would vest discretion in City management to
determine which
officers would receive take-home vehicles.
Turning
to the Association's legal arguments, the City
offered two basic responses. First, the poorly worded Association
proposal will do nothing to mitigate the
pending FLSA lawsuit
brought by
Second, the Association' s argument that it
would be somehow illegal
for an interest arbitrator to award any
proposal that contains
management discretion is
"preposterous."
Based
on the totality of the record, the Arbitrator
should reject the Association's proposal and
award the City's offer
on the subject of vehicles.
D. Discussion
and Findings
The evidence
before this Arbitrator
compels the
conclusion that take-home vehicles serve a
sound and worthy purpose
which results in mutual benefits to both the
citizens and to the
members of this bargaining unit. The evidence equally proved that
not all members of the Association require
the assignment of a
take-home vehicle to effectively and safely
accomplish the duties
of their positions. In addition, there is no doubt that officers
with take-home vehicles derive a material
benefit from being able
to utilize City vehicles to commute to and
from work and thereby
avoid the personal expense of
commuting. The crux of this dispute
involves whether the take-home vehicle
program should be subject to
the terms of the Collective Bargaining
Agreement.
The
Arbitrator holds that the Association's proposal to
add vehicle language to the contract should
not be adopted. The
language proposed by the Association would
be without precedent
among the contracts submitted by either
party. In the judgment of
this Arbitrator, the complex and
comprehensive vehicle language
proposed by the Association is overly broad
and unduly complex.
Several of the provisions would be
unworkable and unenforceable,
For example, how would the City enforce the
requirements that the
vehicles should be locked at all times when
unattended and that
each officer should wax the vehicle at least
one time every six
months?
Moreover,
the financial implications of the Association
proposal which would contractually guarantee
a take-home vehicle
for each and every first class officer and
sergeant make the
proposal totally unacceptable. The
Association failed to rebut the
City's cost analysis which showed an
immediate cost of $1,000,000
to purchase 40 more patrol vehicles. Further, the City estimated
that the cost of 80 marked vehicles being
driven to and from work
would result in an additional expense of
$233,600 per year.
Nothing in the evidence offered by the
Association came close to
demonstrating that a financial expenditure
in the amount required
by the Association's proposal would be
operationally justified.
While
there is some merit to including a provision
regarding take-home cars in the Collective
Bargaining Agreement,
the Association's four-page proposal falls
under its own weight.
Due to the expensive and complex nature of
the Association's
proposal, this Arbitrator is not persuaded
that he should engage in
the modification of the proposal to bring it
within the realm of
acceptability and reasonableness.
The
Arbitrator was not persuaded by the Association's
argument that adoption of its proposal would
alleviate any of the
issues arising out of the FLSA lawsuit now
pending against the
City.
Decisions concerning the lawsuit, and its ramifications will
have to be made in a forum other than
interest arbitration.
The
City recognizes that there are valid reasons for
maintaining a take-home car program. The Arbitrator has concluded
there are benefits both to the City and to
the officers in a take-
home car program. Given the recognition of the mutual benefits
of
the take-home vehicle program, the Arbitrator is unwilling to alter
the status quo by awarding the language
sought by the City to vest
total discretion in the assignment of
take-home cars to City
management.
AWARD
The
Arbitrator awards that the 1996-98 contract should
not include a provision on the subject of
vehicles. The proposals
of both the City and the Association are
rejected and the contract
should remain silent on this subject.
Respectively submitted,
Gary L. Axon
Arbitrator
Dated: