Teamsters
And
City
of
Interest
Arbitration
Arbitrator: Michael H. Beck
Date
Issued:
Arbitrator:
Beck; Michael H.
Case #: 13797-I-98-00296
Employer:
City of
Date Issued:
IN THE MATTER OF THE ) INTEREST ARBITRATION
INTEREST ARBITRATION ) OPINION AND AWARD
BETWEEN )
) PERC
Case No.13797-1-98-296
)
) Dispute: Steps F & F on Salary
and ) Schedule
for Police
) Officers
TEAMSTERS
________________________________ ) Date:
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
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
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
and effect through
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
***
(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
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
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
"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
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:
Creek, Mountlake Terrace,
Mukilteo, Snohomish, and Tumwater The additional eight
cities selected by the
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
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 (
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