INTEREST ARBITRATIONS

Decision Information

Decision Content

Teamsters Union, Local No. 763

And

City of Issaquah

Interest Arbitration

Arbitrator:      Michael H. Beck

Date Issued:   03/10/1999

 

 

Arbitrator:         Beck; Michael H.

Case #:              13797-I-98-00296

Employer:          City of Issaquah

Union:                Teamsters Union; Local 763

Date Issued:      03/10/1999

 

 

 

IN THE MATTER OF THE                         )           INTEREST ARBITRATION

INTEREST ARBITRATION                                   )           OPINION AND AWARD

BETWEEN                                                                 )

                                                                                    )           PERC Case No.13797-1-98-296

                                                                                    )

CITY OF ISSAQUAH, WASHINGTON                  )

                                                                                    )           Dispute:          Steps F & F on Salary

                        and                                                      )                                   Schedule for Police

                                                                                    )                                   Officers

TEAMSTERS UNION, LOCAL NO. 763               )

________________________________                    )           Date: March 10, 1999

 

OPINION OF THE INTEREST ARBITRATOR

 

PROCEDURAL MATTERS

 

            The Arbitrator, Michael H. Beck, was selected by the parties to conduct an

Interest Arbitration pursuant to RCW 41.56.450. The parties waived their right to

appoint panel members and this matter was submitted to the undersigned as the sole

Arbitrator.

 

            A hearing in this matter was held at Issaquah, Washington on December 17, 1998.

The Employer, City of lssaquah, was represented by Cabot Dow  of Cabot Dow and

Associates. The Union, Teamsters Union, Local No. 763; was represented by Michael R.

McCarthy of the law firm of Davies, Roberts & Reid, L.L.P.

 

            The parties did not provide for a court reporter and agreed to waive the statutory

requirement contained in RCW 41.56.450 that a recording of the proceedings be taken.

 

            At the hearing the testimony of witnesses was taken under oath and the parties

presented substantial documentary evidence The parties agreed upon the submission of

simultaneous posthearing briefs which were timely filed and received by the Arbitrator

on January 22, 1999. The parties agreed to waive the statutory requirement that the

Arbitrator issue his decision within 30 days following the conclusion of the hearing.

 

ISSUES IN DISPUTE

 

            During their most recent negotiations, the parties were able to reach agreement on

all but one issue. The parties determined to execute a collective bargaining agreement

( hereinafter the Current Agreement), effective January 1, 1998 and remaining in force

and effect through December 31, 2000 With respect to the one issue, mediation failed

and the Public Employment Relations Commission certified the following issue for

Interest Arbitration:

 

Whether Steps E and F on the Salary Schedule will continue to

be merit steps, or will be converted to regular steps. (Joint

Exhibit A.)

 

STATUTORY CRITERIA

 

            RCW 41.56.465 directs the Arbitrator in making his decision to "be mindful of

the legislative purpose enumerated in RCW 41.56.430 . . . [and to] take into consideration

the following factors:"

 

                        (a)        The constitutional and statutory authority of the

            employer

 

                        (b) Stipulations of the parties;

 

                  (c)(i) For Law enforcement officers] comparison of

      the wages, hours, and conditions of employment of personnel

      involved in the proceedings with the wages, hours, and

      conditions of employment of like personnel of like employers

      of similar size on the west coast of the United States;

 

                                                ***

                        (d)        The average consumer prices for goods and

            services, commonly known as the cost of living;

 

                        (e)        Changes in any of the circumstances under (a)

            through (d) of this subsection during the pendency of the

            proceedings; and

 

                        (f)        Such other factors, not confined to the factors

            under (a) through (e) of this subsection, that are normally or

            traditionally taken into consideration in the determination of

            wages, hours, and conditions of employment For those [law

            enforcement officers who are employed by the governing

            body of a city or town with a population of less than fifteen

            thousand, or a county with a population of less than seventy

            thousand, consideration must also be given to regional

            differences in the cost of living.

 

                                                            ***

 

            The legislative purpose your Arbitrator is directed to be mindful of in making his

            determination is set forth in RCW 41.56.430 as follows:

 

                        The intent and purpose of * this 1973 amendatory act

            is to recognize that there exists a public policy in the state of

            Washington against strikes by uniformed personnel as a means

            of settling their labor disputes: that the uninterrupted and

            dedicated service of these classes of employees is vital to the

            welfare and public safety of the state of Washington; that to

            promote such dedicated and uninterrupted public service there

            should exist an effective and adequate alternative means of

            settling disputes. (Reviser's note omitted)

 

BACKGROUND

 

            The bargaining unit presently consists of 17 law enforcement officers. Appendix

A of the Current Agreement provides for a six-step wage rate progression, namely, Step

A through Step F. The Agreement indicates that the Step A rate is to be paid during the

employee's first six months of employment. The rate then increases step by step with the

Step B rate being paid through 18 months of employment, the Step C rate is paid through

30 months of employment, and the Step D rate is paid through 42 months of employment.

With respect to Step E and Step F, the two steps in dispute here, the Agreement provides

that Step E will be in effect through the 54th month of employment and Step F provides

that it will be in effect commencing with the 55th month of employment.

 

            Although each step sets forth the period during which the rate attached to it is to

be paid, the Agreement does provide different standards with respect to moving through

Step D on the one hand, and through Step E and Step F on the other. Thus, Section A.2

of the Appendix A of the Current Agreement provides as follows:

 

A.2            Steps A to B, B to C and C to D are STEP increases

                  which become effective upon completion of the

                  specified months of employment identified in Section

                  A.1. These STEP increases are based on the

                  employee performing adequately at a satisfactory rate

                  of improvement

 

A.2.1         STEPS D to E and E to F are performance STEP

                  increases. Pay at these levels shall be only for

                  sustained, superior, outstanding skill and ability,

                  effectiveness and results. These increases must be

                  approved by the Department Head and City

                  Administrator, subject to final authority by the

                  Mayor, which shall not be subject to the grievance

                  procedure.

 

A.2.2         Section A.2. 1 is subject to the parties resolving the

                  issue in arbitration and may be modified by such

                  arbitration.

 

            Section A.5 of the Agreement is also relevant to the instant dispute and provides

            as follows:

 

A.5            Master Employee All employees who have attained

                  STEP F are eligible for a "Master Employee" merit

                  payment. Pay at this level shall be only for

                  performance which clearly and consistently exceeds

                  overall job requirements and standards. This

                  payment shall be approved by the Department Head

                  and City Administrator, subject to final authority by

                  the Mayor, which shall not be subject to the

                  grievance procedure. Such payment is effective only

                  for one (1) year. Employees who are approved for a

                  "Master Employee" merit payment shall receive up to

                  five percent (5%) of their annual salary by the end of

                  the pay period for January 31th of the following

                  calendar year.

 

            The Union proposes that Section A.2 be modified so as to read as follows:

 

All step increases become effective upon completion of the

specified months of employment identified in Section k 1.

These step increases are based on the employee performing

adequately at a satisfactory rate of improvement. (Union

brief, pg. 3.)

 

Additionally, the Union's proposal calls for the deletion of Section A.2.1. The Employer

proposes no change to Appendix A.

 

            The Union's proposal calls for employing the same standard for advancement

between Step E and Step F as is called for by the present contract language for

advancement between Step A through Step D. Under the Union's proposal, all step

increases are to "become effective upon completion of the specified months of

employment identified in Section A. 1 ." Furthermore, the step increases are to be based

on the "employee performing adequately at a satisfactory rate of improvement.

 

            In support of its position the Union points out that under Section A.2.1 not only

does the employee have to demonstrate sustained, superior performance for advancement

to Steps E and F, but unlike advancement to Steps B, C, and D, the Employer's

determination is not subject to the grievance procedure. In this regard, the Union points

out that the Employer has taken the position that no only can it delay or deny

advancements to Steps E and F, but it can, at its own discretion, revoke an advancement

to Step E and to Step F at any time it finds an employee is no longer performing in

accordance with the standards set forth in Section A2. 1 of the Agreement.

 

            The Employer, on the other hand, contends that the parties' bargaining history, as

well as its fair administration of Section A.2. 1 of the Current Agreement and predecessor

agreements support the Employer's position that the language of Appendix A should

remain unchanged. The evidence of bargaining history presented by the parties indicates

that as far back as 1975, the parties' collective bargaining agreement had five salary

steps, and step increases, in addition to time in service, were subject only to "the

recommendation of the Department Head."

 

            Commencing with the 1980-82 agreement, the parties agreed to add a sixth step

but also agreed that advancement to the fifth and sixth step, namely Step E and Step F,

would be based on the same sustained, superior performance criteria presently included

in the Current Agreement. Additionally, the 1980-82 agreement also provided that the

Employer determination with respect to advancement to Step E and Step F would not be

subject to the grievance procedure. Furthermore, the 1980-82 agreement provided for the

first time the same standard for advancement between Step A and Step D, which is

presently contained in the Current Agreement.

 

            Leon Kos, the Employer's City Administrator, testified that he participated in the

bargaining for the 1980 agreement. It was his uncontroverted testimony that the

Employer agreed to a sixth step (Step F) and a salary increase for that step beyond that

previously received by the top step police officer. He further testified that in return for

this additional step and pay, the Union agreed that the last two steps would become

"merit" steps rather than steps based merely on satisfactory performance, and therefore,

the parties included the language which has continued from agreement to agreement and

which is now before the Arbitrator.

 

            With respect to the Employer's administration of the merit language in connection

with Step E & F, Police Chief Dwayne A. Garrison, who has been Police Chief for 22

years at Issaquah, testified that he believes the Employer has employed a "fair system,"

pointing out that there have been delays in receiving advancement to Step E or F in less

than 5% of the cases. In this regard, the Union admits that presently each of the

employees entitled to be at Step E or F, based on their time in grade, are in fact at these

steps.

 

DISCUSSION

 

            The current Agreement effective January 1, 1998 through December 31, 2000 is

the first collective bargaining agreement covering police officers that was subject to the

state interest arbitration provisions for uniformed personnel. Prior to July 1, 1995, in

order for law enforcement officers to qualify for interest arbitration, they had to be

employed by a city with a population of 15,000 or more. Issaquah is a city whose

population is approximately 9,600. The parties' prior collective bargaining agreement

(Union Exhibit No. 10) was effective January 1, 1995 at which time the applicable statute

(RCW 41.56.030) still contained the requirement that only law enforcement officers

employed by a city with a population of 15,000 or more were eligible for interest

arbitration.

 

            In 1988 and again in 1993 the City contracted for and received detailed job

classification and salary studies with respect to its overall workforce. The 1988 study

selected nine cities as comparable to Issaquah. The 1993 study eliminated four of the

cities selected in 1988 and selected four other cities as comparable to Issaquah.  In 1997

there was apparently another classification study performed for the Employer, although

the study itself is not in the record. The 1997 Employer study resulted in the selection of

11 comparable cities, five of which had not been selected in either 1988 nor 1993 as

comparable cities.

 

            After 1988, the City and the Union used as guidelines in bargaining the

comparators which resulted from the 1988 study. The parties followed the same

procedure after the 1993 classification study, that is using the comparators selected by

that study as guidelines in negotiations thereafter until 1997 when a new list of

comparators was selected by the Employer. During the course of the three classification

studies, 18 separate cities were identified as comparable cities. The Union proposes that

to the extent the Arbitrator needs to rely on comparable cities, these 18 cities should be

used as the comparable cities. In this regard, the Union contends that since these 18 cities

have been used in the past by the Employer and the Union to assist them in bargaining,

these 18 cities amount to a stipulation of the parties pursuant to RCW 41.56.465(b).

 

            The Employer contends that 18 cities are an unmanageable number of cites to be

used as comparators.  Further, the Employer points out that the comparable cities selected

in the past were done for bargaining with respect to all city employees and not for

employees eligible for interest arbitration. Thus, the Employer has selected 10 cities out

of the 18 cities used in the past which it considers to be the appropriate comparators for

this interest arbitration. In this regard, the Employer states in its brief that it selected "the

10 cities most similar in size as to population and assessed valuation to the City of

Issaquah from the cities used by the City in past City-wide classification and pay

studies." (Employer's brief pg. 7-8.) The ten cities selected by the Employer, in

alphabetical order are: Bonney Lake, Des Moines, Enumclaw, Lacey, Marysville, Mill

Creek, Mountlake Terrace, Mukilteo, Snohomish, and Tumwater The additional eight

cities selected by the Union but not selected by the Employer are: Bothell, Kirkland,

Mercer Island, Puyallup, Redmond, SeaTac, Sumner, and Tukwila.

 

            I find it unnecessary in order to decide the issue before me to make a

determination of appropriate comparators. Thus, even if l were to assume for purposes of

argument that the Employer's selected comparators were appropriate, an examination of

the relevant evidence regarding these comparators supports the Union's position. In this

regard, I note that seven of the Employer comparators provide a six step salary schedule

as in the case in Issaquah. One comparator (Lacey) provides for a seven step salary

schedule, while two comparators (Des Moines and Mukilteo) have a five step salary

schedule. From the foregoing, it is clear that each comparable city requires its police

officers to go through the same or similar number of steps to get to the top step.

Additionally, the time period involved in reaching the top step in the ten comparators is

similar to that at Issaquah. At Issaquah a police officer reaches the top step after 4.5

years, while in six of the ten comparators it takes 5 years to reach the top step and only 4

years in three of the comparators (Bonney Lake, Des Moines, and Mukilteo). It takes 8

years to reach the top step in Snohomish. Thus, nine of the ten comparators are similar to

Issaquah in that it takes either 4 or 5 years to reach the top step.

 

            Only Issaquah, however, requires that the last two steps be awarded, "only for

sustained, superior, outstanding skill and ability, effectiveness and results." Furthermore,

of the ten comparators, six have no language limiting movement from step to step except

for completing the period of time called for by the agreement to move to the next step.

Three cities Des Moines, Mountlake Terrace and Mukilteo) have similar language to that

contained in Appendix A, Section A.2 of the Issaquah Agreement with respect to

advancements through Step D, namely, a record of satisfactory performance in the prior

step. One comparator, Mill Creek, requires that the employee's "performance

consistently meets standards, expectations, and requirements of the position." While this

language is arguably more specific than that contained in the Issaquah agreement with

respect to Steps A-D or in the other three agreements which generally require satisfactory

performance, it is, in effect, similar to satisfactory performance language. Furthermore

the Mill Creek language does not require an employee to meet the sustained, superior

performance standard required at Issaquah for advancement to the last two steps.

 

            The City contends that the top step police officer salary at Issaquah (Step F) is

7.4% higher than the average top step of the comparators. Further, the City contends that

this difference justifies, in light of the bargaining history described earlier in this

Opinion, the retaining of the merit steps at Issaquah. Put simply, in the City's view the

merit step increases were bought with additional money and should be retained by the

Interest Arbitrator.

 

            However, as the Union points out, the economic issue have been settled by the

parties having concluded the Current Agreement. All that remains for your Interest

Arbitrator is to resolve the question of whether Steps B and F on the salary schedule will

continue to be merit steps or will be converted to regular steps. Furthermore, even if

economic comparators were appropriate here, top step monthly salaries is not a sufficient

basis on which to make an economic comparison of employees at comparable employers

since arbitrators in making such comparisons generally will use an hourly rate of pay,

which takes into account salary received for the number of hours the employee is

required to work. Additionally, at a minimum, this computation would include additional

pay such as longevity and educational incentive. The Employer has not provided an

analysis in this regard.

 

            The negotiations for the current Agreement were the first negotiations between

the parties here which were subject to resolution by interest arbitration. As the Union

points out in its brief, it simply had no opportunity previously to submit the issue in

question here to a third party for resolution and, ultimately, had to agree to the

Employer's determination of the manner in which the issue should be resolved. Thus, the

fact that in the past advancement to Steps E and F required a different and more exacting

standard than advancement to Steps B, C, and D does not require a contrary result from

the one I have reached here.

 

            The record does not establish arbitrary, capricious, or unreasonable conduct by

the Employer in connection with its administration of the merit system with respect to

advancement to Steps E and F. However, this fact is really beside the point because what

the Union is seeking here is advancement to Steps E and F on the same basis as

advancement to Steps B, C and D. In this regard, the comparators, even those selected by

the Employer, clearly support the Union's position.

 

            Finally, I note that my decision in this case does not disturb the merit increase

provisions with respect to the Master Employee contained in Appendix A, Section AS.

Pursuant to that section, the Employer is free to provide for a merit increase of up to 5%

of annual salary for employees who demonstrate "performance which clearly and

consistently exceeds overall job requirements and standards." This payment is at the

Employer's discretion and is not subject to the grievance procedure My decision in this

case allows police officers to receive step increases in a manner similar to those received

by police officers in the Employer selected comparable jurisdictions, but still allows the

Employer to provide a financial incentive for extraordinary performance through the

Master Employee provision, without the Employer's determination being subject to the

grievance procedure.

 

                                    AWARD OF THE INTEREST ARBITRATOR

 

            It is the Award of your Interest Arbitrator that Steps E and F on the salary

schedule of the parties 1998-2000 Agreement (the Current Agreement) shall be converted

to regular steps.

 

 

Dated: March 10, 1999

 

Seattle, Washington

                                                                                    __________________________

                                                                                    Michael H. Beck, Interest Arbitrator

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