IN INTEREST ARBITRATION
Between |
|
THURSTON COUNTY DEPUTY | OPINION AND AWARD
SHERIFFS' ASSOCIATION | (Contract Issues)
(Union, Sheriffs' |
Association) | by
-and- | Kenneth M. McCaffree
| P.O. Box 10459
THURSTON COUNTY | Bainbridge Island, WA 98110
(Employer, County) |
Re: Contract Issues 1999-2001 | PERC CASE NO: 14303-I-98-318
| Hearing Dates:
Representatives : | June 7 and 8, July 7 and
For the Union: | August 16, 1999
Mark J. Makler(1) |
| Receipt of Briefs: Sept 29, 1999
For the Employer: |
Otto G. Klein, III(2) | Date of Award: Nov 19, 1999
_______________________________|__________________________________
1 Member, Garrettson, Goldberg, Fenrich & Makler, 1313 NW 19th
Ave, Portland, OR 97209. (503)226-3906.
2 Member, Summit Law Group, 1505 Westlake Ave N, Suite 300,
Seattle, WA 98109. (206) 281-9881.
I. INTRODUCTION
These proceedings arose out of the failure of the parties to
negotiate a successor collective bargaining contract to the
Agreement between them effective from 1996 to 1998 (J 1, Co Tab
2). Although the parties reached agreement on many issues,
others remained (Co 118). When unable to resolve all of their
differences and arrive at a completed agreement either
independently or in mediation, the parties moved to interest
arbitration under the provisions of RCW 41.56. This arbitration
has followed.
A. Issues
On December 30, 1998, PERC certified a list of issues for
interest arbitration (J 4, Co Tab 1). Prior to and during these
arbitration hearings the parties resolved some issues certified
by PERC. Those remaining for consideration by the arbitrator
were as follows:
+ Article 2 - Labor-Management Relations
Section 2(a) (5) of Management Rights
+ Article 3 - Association Business
Section 8. Personnel Files (new language by Un)
+ Article 8 - Hours of Work
Section 1. Regular Work Hours and Work Weeks
Section 6. Semi-Annual Shift Assignments (new language
by Un)
+ Article 9 - Leave
Section 4. Sick Leave
+ Article 10. Compensation
Section 1 . Salary
Section 4. Special and Temporary Assignment Pay
Section 5. Education/Performance Incentive
Section 10. Uniform Allowance
Section 12. Training
Section 14. Funeral Expenses
Section 19. No "Make Work" (new language by Un)
+ Article 15 - Term of Agreement
+ Article (new)-Discipline and Discharge (new language
by Un)
B. Standards and Guidelines for Decision Making
The provisions of RCW 41.56.465 sets forth the standards to
be considered and applied in resolving the differences between
the parties over the issues still in dispute (Co Tab 29) . These
are as follows:
41.56.465 Uniformed personnel -- Interest arbitration panel-
Determinations--Factors to be considered. (1) In making its
determination, the panel shall be mindful of the legislative
purpose enumerated in RCW 41.56.430 and, as additional
standards or guidelines to aid it in reaching a decision, it
shall take into consideration the following factors:
(a) The constitutional and statutory authority of the
employer;
(b) Stipulations of the parties;
(c) (i) For employees listed in RCW 41.56.030(7) (a)
through (d) , comparison of the wages, hours and
conditions of employment of like personnel of like
employers of similar size on the west coast of the
United States; ....
(d) The average consumer prices of 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. ... (Tab 29)
Various arbitrators and others have observed that the
process of interest arbitration is an extension of the
negotiations and collective bargaining of the parties. On that
basis the arbitration process has been directed towards
considering those factors as set forth in the statute above in
such a manner as to reach as nearly as possible what the parties
would have agreed to by themselves in continuing "to bargain with
determination and good faith." The statute places certain
restrictions on the negotiating behavior of these public sector
parties, not found in the private sector of the economy, such as
the right to strike or lockout or to exercise certain other
economic and market tactics. Thus using the standards and
criteria of the statute, the arbitration decision is one that
attempts to find solutions to disputed issues that most likely
would have resulted had the parties been free to bargain as if in
a private sector labor market environment. At best such a
decision will seldom be more than a rough approximation of this
goal, acceptable only because of the paramount interests of the
public in maintaining continuity and stability of services from
the agency involved in bargaining over and against the rights of
employees to improve their wages, hours and conditions of
employment.
The statute offers the above factors as "standards or
guidelines to aid (an arbitrator) in reaching a decision.
Although the statute is mandatory with regard to the
consideration of these factors, it provides neither for the
weight of these factors as one relative to another nor for the
measurement of any of them. These are matters left to the
judgement of the arbitrator and will depend to some extent upon
the circumstances of the bargaining relationship involved.
One other preliminary observation is appropriate. Good
faith bargaining does not necessarily require either party to
offer changes in the provisions of a current collective
bargaining agreement. Although the Sheriffs were frustrated by
the unwillingness of the county to counter propose new language
in certain instances, such as with regard to Discharge and
Discipline, the maintenance of the position that what exists is
more acceptable than proposed new language represents an
appropriate and good faith response to proposed changes. In
these circumstances and under the frame work offered above, the
arbitrator examined the proposed new language, its concept and
content in relation to the proposal to retain current language
with its concept and content, and choose between them.
C. Hearing Procedures
The arbitrator provided the parties with full and equal
opportunity to make opening statements, to examine witnesses
under oath, to offer documentary evidence, to argue procedural
and evidentiary rulings of the arbitrator on issues presented
during the hearing, and otherwise to make known their respective
positions and the arguments in support thereon on the issues in
dispute. Numerous representatives of the Union and Employer
testified during the four days of hearing. In addition four
large notebooks of exhibits containing 137 documents or sets of
documents from the Union and 118 documents from the Employer plus
copies of the collective bargaining agreements in effect for the
proposed comparables were accepted into evidence. Further, the
arbitrator tape recorded the proceedings solely to supplement his
personal written notes of the arbitration. Finally, post hearing
briefs were received in a timely fashion by the arbitrator with
the summary arguments and contentions of the parties and specific
supporting data on the proposals for the issues in dispute. The
parties granted the arbitrator additional time to complete the
decision.
II. COMPARABLES
A. Standards and Guidelines
Subsection RCW 41.56.465 (1 ) (c) (i) provides that the
comparison of wages, hours and working conditions for "like
personnel" shall be made on the basis of "like employers of
similar size. . . " From this, in the instant case, the
determination of "like personnel" and "like employers" clear
enough as "deputy sheriffs" or law enforcement officers and as
county government. What constitutes "similar size" as among
employers is much less certain. Nor is there any identification
of "such other factors that are normally or traditionally taken
into consideration . . ." as found in Subsection (1 ) (f) . This
provision has generally been interpreted by arbitrators to refer
to "labor market" conditions and factors such as geography,
application and turnover rates of specific employers, training
costs and worker mobility, etc. . Cost of living has been
related to geographic regions and areas as well, as these may
affect "real" rather than money wages.
As others have recognized, comparables can be selected on
the basis of objective criteria or on the basis of the results
obtained. If the employer seeks to hold the line on a general
wage increase, comparables could be selected from among those
jurisdictions in which no wage increase had been granted. The
second step is then the selection of the common characteristics
among the list to argue as the standards or guidelines for
selection. Needless to say, this constitutes an improper and non
objective manner of selecting comparables. Rather some bases are
required that are objective in nature, that have some
relationship to the determination of wages, hours and working
conditions, and that represent the nature and character of the
employer business in some substantial degree.
B. Proposed Lists of Comparables
Here the parties have proposed the following lists of
comparable counties to Thurston County:
Sheriffs County
Clark Clark
Kitsap Kitsap
Whatcom Whatcom
Pierce
Snohomish
Skagit
Cowlitz
Yakima
Benton
Spokane
The Union based its selection upon four criteria: (1) all
counties are in Western Washington and (2) for the most part are
in the Puget Sound Metroplex, (3) non agricultural, for the most
part, and located along the 1-5 corridor within two hours of
Thurston County, and (4) represent five of the 10 largest
counties in the state ranging in population from half the size of
Thurston County to twice its size.
Alternatively, the County argues that its list of
comparables comes from those counties that the parties had
previously used and (2) range in size between half the population
of Thurston County to twice its size, confirmed also by assessed
property valuations in the respective counties.
The major argument of the County rested on the rejection of
the inclusion of Pierce and Snohomish Counties in the Union list
and the exclusion of Eastern Washington counties as well as
Cowlitz and Skagit Counties included by the County. These
arguments included (1) changes in the list used by the Union to
obtain results, from initial bargaining, to mediation, to
certification for bargaining, to the list now before the
arbitrator; (2) demonstration that Pierce and Snohomish were
outside any reasonable size limitations; (3) that East and West
comparisons were previously made by the Union and are common
practice among interest arbitrators; (4) inapplicability of
Arbitrator Buchanan's decision re Snohomish County and the East
West comparisons; and (5) geographic proximity fails to make
employers comparable, re Pierce and Thurston Counties.
C. Discussion and Decision
I concluded that the County's list of comparables should be
adopted as those comparables more nearly fit the statutory
guidelines and standards for determining wages, hours and
conditions of employment for uniformed personnel than the list of
counties proposed by the Sheriffs. The following considerations
and factors led to this conclusion.
1. Population and Property Value
First, the essential function or business of the units to be
considered for comparables in this instance is the establishment
and maintenance of a system of law and order, the safety and
protection of people and property. Under these circumstances,
both population and the value of property within the counties are
logical and reasonable criteria upon which to select a group of
comparables.
Although no magic exists in selecting a range for II size II to
which these criteria might be applied, the 50% below and 200%
above the county at issue provides a reasonable basis. This
range of measurement is statistically symmetrical and provides
equal weight to units smaller or larger than the unit at issue.
A county half the size of Thurston bears the same relationship to
Thurston as Thurston county bears to a county twice its
population size, for example. This range hold size" within
reasonable bounds where similarities of actions and
responsibilities will be relatively similar and comparable among
various employers.
In addition I noted that, for the most part, the parties
have agreed in their respective briefs on the 50% below to 200%
above comparison measurement, one that is commonly used by
interest arbitrators (Er Br, p 9; Un Br, p 9; ) . The Union
overrides a strict application of the percentages for size by
contending labor market and geographic factors justify such a
modification. I return to this issue below.
2. Comparables
The list of comparables offered by the County fit the size
criteria whereas only three of five do so on the Union list. On
the basis of population, the counties of Pierce and Snohomish far
exceed twice (200%) the size of Thurston county, 344% for Pierce
and 286% for Snohomish (C 8) . Further, where property value is
considered, the circumstances are changed little, 312% for Pierce
and 329% for Snohomish (C 12; Co 32).
In contrast the counties offered by the Employer fall within
acceptable limits for population and property value combined.
Cowlitz county has a population of only 46.6% of that of Thurston
and Spokane County's population numbers 205.7% of Thurston 5.
However the assessed valuations for both of these counties fall
within the 50% below and 200% above that of Thurston, at 55% for
Cowlitz and 163% for Spokane counties, respectively (Co 30, 31).
Since population data are based on survey samples and not a face
to face count as the decennial census, the variations in
percentages of Cowlitz and Spokane counties relative to Thurston
County may well fall within the sampling error and lie within the
50% below and 200% above criterion for size.
I concluded that for comparable services and
responsibilities among these employers as in the provision of
police services and protection, that both Cowlitz and Spokane
counties met the criteria for size and should properly be
included among the comparables to Thurston County. No question
can be raised regarding the size criteria for other counties in
the list of the Employer.
3. Shortcomings of Union Proposals
In the second place, I have set aside the arguments of the
Union that counties in Eastern Washington should be excluded. As
a basis for this exclusion, the Union offered a difference in
weather between East and West, an assertion from a decision by
Arbitrator Snow that different labor markets exist between East
and West, and that the East is primarily agricultural rather than
industrial as in the West.
Although weather is different between eastern and western
Washington, I could not determine from the Union's argument how
this would adversely affect the usefulness of comparisons on the
employment conditions for law enforcement. Further, even though
labor markets for some services are different as between East and
West, labor markets are not alone defined on the basis of
location or geography.
In the instant case, the unique training and qualifications
required for police officers and deputy sheriffs create an
"industry" and/or "occupational" labor market more relevant to
the issue of wages, hours and working conditions than mere
geography and proximity of one employer to another. The labor
force is mobile at least potentially, if not actually the case
for deputy sheriffs, as the Union claimed in its request for wage
increases (Un Br, p 14) . Nor did the record in the instant case
indicate any specific differentials in working conditions as
between East and West, not offset, for example, by difference in
living conditions and the cost of living, or other factors that
would affect a direct comparison of wages among county employers
between the two regions.
Finally, Yakima and Benton counties do have an agrarian
character to them, but also so does Whatcom county and sections
of Thurston. The Union has difficulty to justify the inclusion
of Whatcom vis a vis the exclusion of eastern Washington
counties on the basis of agricultural or resource based industry.
This inconsistency weakens the contention to exclude Benton,
Yakima and Spokane counties.
Lastly, as the Employer pointed out, the Union is on weak
ground to argue against inclusion of comparables from Eastern
Washington. It has relied upon such counties for comparables in
the past. During negotiations and mediation, and during the
preparation for interest arbitration, the Union did include
eastern Washington counties in its list of comparables (C 16, p
6-8) . Further, the Sheriffs agreed in the 1996-99 Agreement to
use eastern Washington counties as comparables in setting the
salary of lieutenants [Co 2, Art X, Section 1(f)]. The
opposition to using such counties was not persuasive for this
arbitrator.
4. Contiguous Areas
The final consideration in deciding to use the County's list
of comparables was based on a rejection of the central arguments
of the Union regarding the reliance upon contiguous areas. The
1-5 corridor from Whatcom to Clark counties was cited as a
unifying character, related to travel time and commuting from one
or the other to Thurston county. But among 871 county employees,
only one resides in Clark county and none in Whatcom county (Co
4)
Further, in each instance of alleging comparables, some
exception exists for the Union. Whatcom and Clark are not part
of the Puget Sound "metroplex," another alleged unifying factor
to support comparables. Skagit, Mason and Cowlitz counties
interrupt the 1-5 corridor, and a special case must be made for
Kitsap which is not on 1-5. And if the "metroplex" the basis
for determining comparables, I found the omission of King county
unexplained.
I noted above that labor markets are defined and apply under
different circumstances. Although geography is a common basis
for determining a labor market, it applies more generally to
"blue collar" and clerical workers where uniqueness of skill is
rare and training costs are low for entry into the market. On
the other hand, occupational or industry oriented markets apply
to workers who have specialized training, such as police and law
enforcement officers, and the professionalism of the occupation
permits widespread mobility across geographic area. In one
sense, the labor market for the services of deputy sheriffs and
police officers is not bounded by geography but by the nature of
the work and services to be performed. Thus, the contiguousness
of Pierce county to Thurston is a relatively insignificant factor
in measuring the labor market for law enforcement services.
5. Conclusion and Decision
The common characteristics of the counties offered for
comparables by the Union were insufficiently strong to override
the preference for the list of the County. The list of
comparables for the Union have common features as (1) to location
in Western Washington, (2) represents primarily non-agricultural
areas, and (3) all counties are found in the ten largest in the
state. I found these criteria and standards less related to
the consideration required under the statute than the size of
counties by population and property values set out by the County.
In addition, I found that the use of the list proposed by the
County by the parties in prior negotiations added weight to the
rejection of the Union list and support for the comparables
offered by the Employer.
Thus, I decided to use the counties of Clark, Kitsap,
Whatcom, Skagit, Cowlitz, Yakima, Benton and Spokane as
comparables in the determination of the wages, hours and
conditions of employment which the parties have placed before me.
III. GENERAL WAGE INCREASES
A. Proposals
The Union proposed an across the board wage increase during
a three year Agreement, as follows:
Section 1. Salary
a. Retroactive to January 1, 1999, the salary steps in
effect on December 31, 1998, shall be increased by
five percent (5%).
b. Effective January 1, 2000, the salary steps in
effect on December 31, 1999, shall be increased by
five percent (5%).
c. Effective January 1, 2001, the salary steps in
effect on December 31, 2000, shall be increased by
five percent (5%).
The County proposed a wage increase of 3% for each of the
three years of the collective bargaining agreement.
B. Support for Respective Positions
1. Union
The Union offered three contentions in support of its
proposed across the board wage increase. First, the 5% per year
was required to keep up and to catch up slightly with the
comparable counties. This was supported by data in exhibits W 4-
6 that indicates Sheriffs are underpaid and behind in salary
against the average of the comparables used by the Union by
between 8.61% and 11.62%. The County proposal will leave the
deputy sheriff with five years of seniority exactly in the same
deficient position as is the case now.
Second, the Union asserted that the 5% annual increase was
required to meet the pace of inflation and the higher cost of
living in the Puget Sound metroplex. Although acknowledging that
the level of prices has increased only nominally in the last
three years, the Union argued that in the next three the robust
metroplex economy and its higher cost of living than other areas
will require the 5% wage increase each year to keep pace with
inflation and the cost of living. A smaller increase will be
detrimental and the deputy sheriff of Thurston county will fall
even farther behind the comparables in the Puget Sound metroplex
area.
Finally, the Union argued that a 30% turnover rate for the
five year period just ending was the result of lower salaries and
poor working conditions in Thurston County relative to the
comparables. Thus the 5% annual increase is needed to stem the
outflow of trained deputies. Citing the high costs of training
replacements, the Union contended that the 5% wage increase
relative to the 3% offered by the County would save the County
money by reduced replacement and training costs for new recruits
to fill the vacancies of those leaving for better paying
positions.
2. Employer
The Employer contended that the salaries of Thurston county
deputies have not lagged among the comparables. Here the
Employer argued that the top step base salary was the best
comparative statistic to use for salaries. On this measure it
showed on the basis of the eight comparables for 1998 data that
the County was ahead of the average of comparables by 1/2% (Co
43); that adding longevity payments for 10, 15 and 20 years,
showed Thurston salaries behind by .23% at 10 years but ahead by
.26% and .41% for 15 and 20 years, respectively ( Co 44); that
including education incentive pay to the top step base salary and
longevity, Thurston county salaries exceeded the average for the
comparables for both AA and BA degrees with the later exceeding
the average by over one percent (Co 45, 46) . Finally, using the
average seniority of Thurston County deputies at 71/2 years,
comparisons of salaries across the comparables for base plus
longevity, base plus longevity and education, the Thurston
salaries are almost exactly the same as the average of the
comparables except that those with a BA have a 1 .5% salary
advantage over deputies in the comparable counties (Co 5, 47).
In addition, the County contended that the Union had
included insurance contributions improperly and incorrectly in
its wages comparisons, although the major difference in results
between the Employer and Union regarding any alleged catch up in
salaries for deputies arose from the use of Pierce and Snohomish
counties as comparables. In addition, the Union ignored
education incentive payments since to have included them would
have eliminated much of the alleged catch up need, the Employer
maintained. Several other differences in the presentation of
salary information between Union and Employer were pointed out,
such as inclusion of the Clark County sick leave plan not
included elsewhere, ignoring that some deputies in Clark county
work 2190 hours, not the 2080 shown elsewhere, counting vacation
given in time off as actual dollars earned, and some confusion
between use of 1998 or 1999 data.
Finally, the County pointed out that its offer of a 3%
increase fits what other jurisdictions have been agreeing to.
Here three of the comparables have 1999 increases of 3%, one at
4.5%, three at 3.5% and that King, Snohomish and Pierce counties
have increased 1999 salaries by 3%, 2.25% and 3% respectively (Co
53; 53A) . The proposal of the County fits this pattern and will
retain the historical relationship of Thurston County deputy
sheriffs' salaries to those of the comparables and of the
metroplex counties as well. The County's offer is "fair and
reasonable when analyzed in this context," the County concluded.
C. Discussion and Decision
The 1998 salary data from among the eight comparables
demonstrate clearly that an increase for 1999 and thereafter for
Thurston County deputies is not required to "catch up." On the
basis of the top step data, adjusted for longevity and education
incentives, and on the basis of salary adjusted for the average
seniority for Thurston County Deputy sheriffs showed no catch up
necessary relative to the average salary in each of the
comparables. As the data in Co 43-47, the Thurston county
salaries are right on the average and with only two exceptions
exceeded the average for the comparables by a small amount. The
two percent greater increase than that offered by the Employer as
requested by the Union is not required to "catch up" salaries in
Thurston county with the comparables.
Thus the initial remaining issue here is determining an
increase for 1999 independent of a "catch up" variable. In this
respect, I have reproduced Co 43 with extensions through 1999 as
found in the collective bargaining agreements, tabs 21 through 28
in Book two of the County's exhibits and the data in Co 53.
The table is as follows:
% %
1998 % 1999 Increase Increase
County Salary Increase Salary 2000 2001
Benton $3,655 3.0* $3,765 N/A N/A
Clark 3,684 3.0 3,795 3.5 N/A
Cowlitz 3,681 3.5 3,810 N/A N/A
Kitsap 3,813 3.5 3,946 N/A N/A
Skagit 3,757 4.5** 3,891 4.0 3.5
Spokane 3,722 3.5*** 3,852 N/A N/A
Whatcom 3,788 3.0 3,902 N/A N/A
Yakima 3,660 3.0 3,770 3.0 N/A
Average $3,720 3.25 $3,841 --- ---
Thurston $3,736 ---- ----- --- ---
County--- @ 3.00 $3,848
Union---- @ 5.00 $3,923
Notes: * Assumed Benton would settle per pattern at Yakima.
** Effective March 15, 1999. Salary adjusted to
January 1, 1999.
*** As understood from Er Br at page 26 that "three
others are paying a 3.5% increase." Cowlitz,
Kitsap and Spokane (Co 53).
From the above table the data do not support the claim for a
five percent salary increase for Thurston County deputy sheriffs
in 1999. Rather the three percent increase offered by the County
will retain the position of County salaries relative to those in
the comparables.
Other information supports the reasonableness of the
County's proposal for a three percent salary increase in 1999.
First, as testimony reported at the hearing, neighboring
metroplex counties of Pierce, King and Snohomish provided for
salary increases in 1999 of 3%, 3%, and 2.25% respectively.
Second, other bargaining units within the County have
settled for or have tentatively agreed to settle for the 3%
salary or wage increase for 1999. These settlements include the
Corrections Officers unit, the clerical and OPEIU unit and other
units represented by AFSCME (Co 17; testimony) . The deputy
sheriffs' are not disadvantaged by maintenance of "internal
equity" for employees of the county. Over the preceding several
years, the sheriffs have gained percentage wise relative to other
county employees, and by the substantial amount of some ten
percentage points over non uniformed personnel (Co 15) . Here,
where the comparables do not indicate any greater increase than
the 3%, maintaining equity between the deputy sheriffs and the
other county employees has merit.
Two issues remain. First, the Union argued for catch up vis
a vis the cost of living index for Seattle-Tacoma in relation to
the lag of salaries in Thurston behind the comparables that it
proposed. Second, there is the matter of retention of employees
rather than a flight to "higher paying" jurisdictions.
Although an argument is reasonable to provide some increase
in salary in excess of the rise in prices and the cost of living
index, the proposal of the Union was less than convincing on that
basis. Arguing primarily for a catch up in salaries (W 19 ff),
the Union relied upon the Seattle-Tacoma index for urban
consumers that showed 2.90% increase in 1998 (W 42) . The CPI-W
for the area increased only 2.6% and why one index rather than
the other was selected was not indicated.
However, what is relevant here are two factors. First,
reliance upon an metropolitan area index is questionable because
of the great variability in the index and the probability of a
high sampling error because of the small sample size used (See Co
21 , p 2) . BLS recommends specifically that metropolitan indices
not be used for labor contracts because of sampling error
inherent in such small populations. The national or regional
measures are far more reliable as indicators of increases in the
cost of living. (See the discussion by Sutberry, Co 26)
Second, the estimate of 2.9% for the area is clearly too
high. The more stable and accurate all cities index was only
1.6% above a year ago as of the early spring, 1999. Nor is there
any indication that prices are likely to rise as the Union
contended. The guiding principle behind recent changes in the
interest rate on bank funds is the control of and prevention of
rising prices in a booming economy. Increases in interest rates
increases the cost of doing business, slows down expansion, and
thus contracts the upward pressure on production and prices.
Although no one can foretell the future with a great deal of
accuracy, the recent trends and the controls exercised by the
Federal Reserve Board and Chairman Greenspan provide no firm
basis for the proposed five percent increase in salaries for
Thurston County deputy sheriffs as justified by past or expected
cost of living increases.
Specifically, with regard to the salary increases of the
deputy sheriffs in Thurston County vis a vis the cost of living
changes, I noted that in the eight year period between 1991 and
1998, the national CPI rose 24.8% compared to salary increases of
the deputy sheriffs of 38.86% (Co 16, 20). Although productivity
gains in the economy should be shared by everyone, the 12
percentage point spread between changes in prices and rise in
wages indicates that the bargaining unit in question here did not
lose out on rising productivity and higher standards of living.
Changes in the consumer price index supports and justifies the
County's proposal for a 3% salary increase better than the
proposed Union increase of 5%.
Finally, I set aside the argument of the Union that a five
percent salary increase can be justified on the basis of
defections of present workforce members to other jurisdictions.
First the turnover rate is properly set as an annual rate. Thus
the real turnover rate among deputy sheriffs over the last five
years is about 6% per year rather than the 29.5% five year rate
computed by the Union. Although the 6% rate is a relatively good
one, I noted that of the 23 deputies to have left the force in
the last five years, six retired, one died, two had career
changes and among the remaining 14, only seven actually went to
another law enforcement agency although the two who moved out of
state could have done so (W-35). Thus the actual defection rate
to other agencies would be more near the 2.5% turnover level, an
insignificant factor in affecting the level of salaries and other
working conditions in Thurston County.
Increases in the level of salary and more advantageous
working conditions for deputy sheriffs in Thurston County cannot
be justified on loss of personnel to other law enforcement
agency. Co 6 shows 15 new hires from other law enforcement
agencies in the last five years. Compared to the loss of only 7,
as reported in W-35, the ability of the County to obtain
additional deputies in even greater numbers fails to persuade the
arbitrator that a five percent salary increase is needed or
warranted at this time.
Thus I conclude here that a 3% per cent salary increase for
1999 would be appropriate. The salaries of deputy sheriffs
remain comparable to those salaries among the comparables,
represent similar increase to those obtained elsewhere in the
County and in the Puget Sound Metroplex, are not being depleted
by increases in the cost of living, nor are the salaries so low
that the workforce is being depleted by defections to higher
paying law enforcement agencies.
Little information or data were provided by the parties
concerning salary changes contemplated for the year 2000 and
beyond. Among comparables, only three have set salaries for 2000
and these represent an average increase of 3.5% On the other
hand local negotiations in the County have adhered to the 3%
increase, as would be the minimum guaranteed in King and Pierce
Counties under current deputy sheriff agreements there. More
will be granted if 90% of the CPI exceeds 3% As suggested
above, I question the likelihood of that occurring. Almost no
information is available upon which to rely for the year 2001,
and thus here I must rely upon the basic judgement of the
parties. The arguments for a five percent increase in 1999 or in
2000 have left this arbitrator unconvinced. Other evidence
indicates that the 3% may be closer to the mark, and what the
parties would likely have agreed upon had they concurred with the
3% in 1999.
Thus, I conclude to adopt the proposal of the County for
salary increases of 3% across the board for each of the years of
1999, 2000, and 2001 with the increase effective on January 1 of
each year. The parties are directed to amend Article X, Section
1 a, b, and c accordingly.
IV. LIEUTENANTS' PREMIUM OF 2%
A. Proposals
The Union proposed to amend Article X, Section 1.e to read
as follows:
e. In addition to the amounts provided for above, the
salary steps for Lieutenants shall, retroactive to
January 1, 1999, be increased by an additional two
percent (2%)
The Employer proposed that no additional percentage increase in
salary for Lieutenants was appropriate.
B. Arguments and Data in Support of Proposals
1. Union
The Union's support for its proposal rested upon two primary
contentions. First, the Union points out that the salaries of
lieutenants in Thurston County fall 23% to 25% below the salaries
of lieutenants in the list of comparables proposed by the Union
(W-10 and W-11). Second, although the Union believes that the
lieutenant classification in Thurston is more comparable to
lieutenant classifications elsewhere, comparing sergeants
salaries to those of lieutenants in Thurston county, on the basis
of the Union's comparables, indicates that the salaries of
lieutenants are still at least 11% behind (W-16, 17, 18). Thus
the lag of lieutenants salaries on this basis justifies an extra
2% per year for the lieutenants in Thurston County.
2. Employer
The Employer pointed out that the parties agreed in the
current Agreement to augment the salaries of lieutenants and
devised a plan to do so by using those same comparables that the
County has proposed herein. Lieutenants did receive a one
percent increase greater than that of the deputies in 1997 and
1998, and the Employer argued that no further increases were
justified to achieve parity between salaries of lieutenants in
Thurston County with salaries of like personnel in the
comparables.
The parties agreed that the lieutenants were the first line
supervisor above the deputy and thus comparable to the sergeant
classification in most other jurisdictions. They had agreed to
set the lieutenant salary at the average spread between the top-
step deputy and the first line supervisor in the comparables. At
this time, according to the Employer, that differential on
average among the comparables is 16.85% where as the lieutenant
salary in Thurston is 17.8% above the top step deputy. Since
the Union failed to present this information, the Employer argued
that it did not do so because the above computations show that no
increase was required (See Co 48) .
Comparisons of salaries of lieutenants in other
jurisdictions with those of lieutenants in Thurston County is in
appropriate, since the lieutenants are first line, not second
line supervisors, as in other counties. Thus these data should
be ignored, the Employer concluded.
The County developed data regarding salaries among the
comparables for first line supervisors in Co 49 - Co 52. These
were top step salaries adjusted for longevity at 10, 15, and 20
years, and by AA and BA degrees. In all instances from base
salary to the adjusted salaries, the Thurston County lieutenants
received salaries in excess of the average salary of the first
line supervisors in the comparables, ranging from .69% to 2.92%.
Although the Union claimed that lieutenants were underpaid
relative to the command staff in the sheriff's office the
Employer denied such an allegation. Lieutenants received over
time pay, longevity pay, and some advantages in the payment for
medical insurance that captains do not, and the County has
accordingly kept the differential in pay substantial. Looking at
the total package received by lieutenants relative to captains,
the County insisted that the differential was very nominal, at
about 4% for the lieutenant who testified relative to the
captain's salary level.
C. Discussion and Decision
On the basis of the data from the comparables and the
recognition that the lieutenant in Thurston County is the same
level of supervision as the sergeant in other jurisdictions, I
concluded that no additional increase was required for the
salaries of lieutenants. The data presented by the County with
regard to 1998 salaries and comparable jurisdictions were more
than adequate to justify rejecting the 2% additional salary
increase each year as proposed by the Union. In addition, the
arbitrator computed the 1999 top step salaries of first line
supervisors from the collective bargaining agreements, using a 3%
increase for Benton County and a 3.5% increase in salaries in
Spokane county. The average for the comparables was $4,667 per
month. A three percent increase in Thurston County would raise
the top step lieutenant's salary to $4,668. I found no
justification for an additional 2% increase for the lieutenants'
salaries on these bases.
Some issue may be raised over the internal relationship
between the salaries of lieutenants and captains in Thurston
County. However, I was unpersuaded that the situation was so
inequitable as to justify overriding the above parity of salaries
of lieutenants in Thurston with the salaries of comparable
supervisors in the eight comparable jurisdictions.
I decided that no additional salary increase for lieutenants
was appropriate, and thus Article X, Section 1 e should be
deleted from the Agreement.
V. EDUCATION PERFORMANCE INCENTIVE : Article X, Section 5
A. Proposals
The Union's proposed changes in Article X, Section 5
Education Performance Incentive are attached in the Appendix
hereto. The proposal increases the education premium by .5%
after completion of 10, 15 and 20 years, adds science degrees and
the equivalent college credits for AA/AS, provision for Master's
Degree, and pay of the incentive each pay period rather than
towards the end of the year as now.
The Employer proposed to leave this section unchanged from
the current Agreement.
B. Support for Proposals
1. Union
The Union noted first that its proposal would reward
completed education degrees at a consistent and fixed time and
adds significant economic benefit to the deputies. In addition
the training obtained through these degrees prepares the deputies
to meet the greater variety of situations that law enforcement
officers encounter and do so with better judgements and
understanding of the "human psyche, social and economic
environments and how to communicate with people" in all
categories of life. These are real advantages to the County for
it encourages officers "to improve and update their judgement and
decision-making skills and abilities." For such benefits, as the
County admitted, the costs are very low with an impact of only
$3500 or so each year. Clearly continuing education should be
encouraged, the Union concluded, and the above proposal
adopted.
2. Employer
The County pointed out that Thurston County is unique in
providing both longevity and education premiums. The amount of
the education incentive is dependent upon longevity or seniority
with the County. Among the comparables, Cowlitz, Kitsap, Whatcom
and Yakima counties do not have any incentive pay. In Spokane,
the deputy must choose between an education incentive system or
longevity, and Clark county has now eliminated education
incentive pay and uses a straight longevity system, the Employer
pointed out. On this basis, the County has "a very healthy
incentive program" relative to the comparables, and when coupled
with longevity, no reason exists to add more money for education
incentive pay. Specifically, the County asserted that the Union
gave no justification for the addition of a Master's program and
how this would be beneficial to the Sheriff's Office. Overall,
the County is well ahead of the comparables, and no addition to
pay plan is justified.
The incentive pay has been made on an annual basis, and no
reason was advanced for changing it, the County stated. Payments
shortly before Christmas holiday have proved advantageous for all
parties. No reason exists to change the County's payroll systems
and procedures in this instance.
C. Discussion and Decision
I concluded to set aside the Union's proposal for changes in
the education performance incentive or premium pay. Clearly,
what is proposed by the Union goes well beyond what exists in the
eight comparable jurisdictions developed above. Five of those
counties have no education incentive pay program, and only
Spokane could be credited with a "better" one than Thurston (Co
99). But as the Employer pointed out, selection of the education
package in Spokane precludes longevity pay. This leaves the
matter unclear whether Spokane has a preferable system to that in
Thurston with its combination longevity and education/performance
system.
In addition, the salary comparison among the comparables
made above included both longevity pay and education incentives.
The salaries of Thurston County deputies were on a parity with
the average of salaries in the comparables on these bases. This
comparison indicates that no adjustment in the
education/performance incentives is required at this time.
Until clear advantages of a Master's degree in law
enforcement appears, I find the addition of the Master's degree
program inadvisable.
I noted that the Union did not argue in its brief for
payment each month rather than a one time payment at the end of
the calendar year. Even if not withdrawn, I agreed with the
Employer that a change in the payroll systems and procedures did
not seem justified here.
I concurred with the Employer that some minor changes in the
matrix might be made but that no changes in the amount of
incentive pay is justified at this time. If science degrees have
not been accepted, these certainly should be given an equivalence
to the arts degree. I question the advisability of allowing
college credits per se to substitute for degree achievement.
Completing a program is indicative of an interest to achieving a
specific goal, not sampling the wide field of knowledge in a
great variety of college courses. I leave these matters,
however, to the wisdom of the parties.
I set aside the proposal of the Union to change Article X,
Section 5 Education/Performance Incentive and direct the parties
to accept the Section in the current Agreement.
VI. ASSIGNMENT PAYS: Article X, Section 4
A. Proposals
The proposal of the Union is Attachment 2 in the Appendix
hereto. The proposal makes three changes in assignment pay: it
allows assignment pays to compound; the sergeant's premium is
increased from 3% to 5%; the compensation of Instructor and Field
Training Officer is computed differently to increase total pay.
The Employer proposed that the compensation arrangements for
assignment pays remain the same as in the current Agreement.
B. Support for Proposals
1. Union
The Union pointed out that the sergeant classification in
Thurston County was "abysmally underpaid in relation to
comparable jurisdictions" as used by the Sheriffs. The basis for
this claim arose from alleged similarities of duties between
sergeants in Thurston with those duties of sergeants in other
jurisdictions. Citations from the draft job descriptions as
between sergeant and lieutenant were relied upon to support this
claim.
The Union claimed that sergeants act as field supervisor at
all times, and in effect, are doing the work of lieutenants when
necessary. Because they function as the lieutenants, the
sergeants should be compensated higher than currently. Citing
both Kitsap and Pierce Counties who have classifications that
approximate those of sergeant in Thurston, the Union showed that
salaries were low in Thurston by nine to 12%. In other
jurisdictions, sergeants receive out of classification pay when
doing lieutenant's work, whereas in Thurston, the sergeant
receives only the 3% premium. Others provide for a minimum of
5%, the Union asserted.
The basis for dropping the limitation on stacking assignment
pays is that sergeants and others should be paid for what they
do. It is up to the Employer to decide what the employee shall
do, but when assigned more than one activity, the compensation
should be accordingly. Although stacking does not exist in the
jurisdictions cited by the County, neither is that practice
prohibited, the Union alleged. All employees should be paid on
the basis of what they do, and thus limitation on stacking should
be eliminated completely.
Finally, the Union maintained that the proposal with regard
to compensation of field training officers was incorporation of
the current practice and as such should be written into the
Agreement. This was based on the testimony of Deputy Sheriff
Keith, President of the Union.
2. Employer
The County's contention in support of the status quo was
that deputies in Thurston County now receive higher premiums than
in the comparable jurisdictions. "there simply is no reason to
increase the already substantial assignment pay of Thurston
County."
Also, according to the County, no other of the comparable
jurisdictions allows for the compounding of specialty pays (Co
95) . Any change here is inconsistent with the practice across
the state of Washington, the county asserted. Deputies receive
the highest premium to which eligible in Thurston County, and no
change is necessary here.
As for the increase in sergeants pay by 2%, the Employer
pointed out that sergeants get the 3% at all times and not just
when acting as a supervisor in lieu of a lieutenant. In other
jurisdictions, the employee gets the higher pay only when
actually performing the duties of a higher classification. No
reliable comparison can be made here with other jurisdictions,
the County concluded. Nor was any compelling justification
offered by the Sheriffs to increase the sergeant's pay. Although
occasionally sergeants now schedule ten hour days and approve
time-off requests in the absence of a lieutenant, these duties do
not justify the increase proposed by the Union.
Finally, the Employer claimed that no basis was offered for
changing the pay of the field training officer and as far as the
County could understand, no reason existed for the change. It
should be denied by the arbitrator.
C. Discussion and Decision
I concluded that the provisions in the current Agreement
with regard to Article X, Section 4 Special and Temporary
Assignment Pay should be retained. This conclusion rested
primarily on the practices, or the absences of practices in the
jurisdictions of the comparables. As indicated in Co 97, special
pays in Thurston are more than equal to those in other
jurisdictions. Further, compounding is not included in the
working conditions of the comparables, per Co 95, even though no
jurisdiction prohibits the practice specifically.
Although I recognize some overlap exists in the duties
included in the jobs of sergeants and lieutenants, whether or not
an increase from 3% to 5% over base salary is justified at this
points rested primarily on the extent to which the sergeants'
tasks have been increased and further overlap those of
lieutenant. Some changes have taken place but my understanding
was these were nominal and would not justify the 2% increase in
salary.
Thus the issue was whether the 3% premium on the salary of
sergeant was sufficient to compensate for upgrades when acting as
supervisor/lieutenant relative to what occurred in the comparable
jurisdictions. Here I found the claim by the Union that a 5%
differential existed in some counties was paid only when the
sergeant actually performed the supervisor's duties, not as in
Thurston when the deputies as sergeants obtained the 3% as a
premium on base salary as a general overall estimate of what the
sergeant should get when acting as the first line supervisor in
lieu of a lieutenant. I was unpersuaded that a change should be
made at this time.
The information on the effect of the change in language as
it applied to the compensation of the Field Training Officer was
meager. Although the Union claimed that Deputy Keith testified
without contradiction that the Union proposal was making the
language consistent with current practice, the County in its
brief claimed no evidence was offered to justify the change in
language. Under these circumstances, I am remanding consideration
of this change to the parties, with the instruction that if the
new language is consistent with the practice, as for example, the
3% of base pay for "any part of a shift" rather than "each
month" in which they (FTO's) are assigned to perform these
duties, is actually paid, then the language should be altered to
reflect the practice of the parties. Although I may be obligated
to make a definitive decision on this matter, I cannot regard it
as a major issue between the parties to be resolved on the basis
of the other conclusions expressed herein with regard to
assignments pays.
Thus, with the above instruction to the parties on FTO
compensation, I direct that the parties continue the provision at
Article X, Section 4 in the new Agreement.
VII. UNIFORM ALLOWANCES: Article X, Section 10
A. Proposals
The Union proposed (1) to increase the uniform allowance for
a new hire to $1000 at time of hire plus $600 annually on date of
employment; (2) cleaning allowance increased from $40 to $50 per
month; (3) eliminate the use of reconditioned body armor; and (4)
the County provides a gun to the deputy. Certain nominal editing
changes were included in the Union's proposal as well.
The Employer proposed to make no changes in the uniform
allowance, Section 4 of Article X of the Agreement.
B. Support for Proposals
1. Union
The Union contended that the present system was inadequate
for new hires. An initial outfit will cost about $1800 but the
County provides a new hire with only a prorated share of the $600
annual allowance from date of hire to end of year (0-4) . This
represents a hardship on the new hire. Further, the Union
claimed that its proposal was not out of line with that provided
in other jurisdictions.
The increase in cleaning allowance was justified by
increasing costs of cleaning and the sufficiency of funds to
allow cleaning of two plus uniforms per week. The Union claimed
that detectives should be given an allowance as well. Among
comparables cited by the Union, the $50 cleaning allowance and an
allowance for detectives closely approximated what those
jurisdictions did.
The Union proposed that reconditioned body armor not be
used. Since this was the practice, the language proposed by the
Union should be adopted.
Finally, the Union I proposal was for the County to provide
the gun for the deputy rather than for the new hire to obtain a
gun. currently the new hire may have the County provide the gun
and then the employee pays for it over the next three years. The
cost of the gun increases the burden on the new recruit, the
Union claimed and with its provision by the County will allow the
new hire to meet uniform needs more readily.
2. Employer
The Employer's basic argument here was that "If it works,
don't fix it." The uniform allowance is adequate, meets what is
provided by comparable jurisdictions, and does not constitute an
undue burden on the new hire. The employee can choose the
quartermaster system rather than take a monetary allowance.
Further, many new hires comes from other law enforcement agencies
and the recruit already has a gun. If this is not the case, the
recruit can take three years to pay for the gun.
As for cleaning allowances, Thurston County provides as much
if not more allowance than the counties among the comparables.
Since detectives are not in uniform, and may wear casuals on at
least one day a week, cleaning of their clothes is much less than
for uniforms, and may represent simple laundry in some instances.
No basis exists to include detectives among those who obtain
cleaning allowances.
C. Discussion and Decision
To a certain extent the Employer's argument is meritorious
if no real problem exists with regard to the provision of
uniforms, cleaning allowances, provision of a gun, and soft
armor. However, after examining the mixture of systems for the
provision of uniforms and equipment among the eight comparables,
I concluded that three changes should be made in this Section of
the Agreement.
First the County shall be required to furnish a gun to each
new hire at the time of employment or allow $450 for the
procurement of one, the method at the option of the employee.
Four of the jurisdictions, Clark, Kitsap, Skagit, and Spokane
provide a gun to a new hire and in the case of Whatcom an
allowance of $1000 for uniform, including a gun, is provided.
Only in the case of Cowlitz and Yakima did I find specific
provisions in the Agreement that the employee must provide his
own gun. I could find no reference to equipment provision of
this nature in Benton County's Agreement. Although the pattern
is not overwhelming, I concluded that the Union had a point in
requiring the County to provide a gun to a new employee.
Second, Thurston County provides less in benefits re uniform
allowances and cleaning than other jurisdictions for detectives.
Clark, Kitsap, Skagit, Spokane, and Yakima provide funds for
clothing. It was not clear whether or not detectives shared in
the uniform allowance in Whatcom. Only Benton and Cowlitz
appeared to exclude them from receipt of an allowance for clothes
and cleaning. But in any event, a majority of the comparables do
make an allowance for clothes and cleaning for detectives.
Further, although the amount varies substantially from county to
county, the clothes and uniform allowance centers around $500 per
year, paid usually in quarterly installments. I concluded that
this allowance would be appropriate for detectives in Thurston
County.
As for the cleaning allowance, I found sufficient practice
among the comparable to conclude some increase was appropriate in
Thurston county. Although both Benton and Yakima counties take
care of the cleaning bill for uniforms, Clark, Kitsap and Skagit
allow at least the equivalent of the cleaning of two uniforms per
week. On that basis per the schedule of costs submitted in 0-3,
the current $40 per months allowance for cleaning uniforms is
low. Accordingly, I shall direct the parties to increase the
uniform cleaning allowance for deputy sheriffs to $50 per month
in the county.
Since a new employee may go to the quartermaster system, the
alleged high cost of initial clothing and equipment was
unpersuasive as a basis for providing a new hire with $1000
clothing allowance plus a gun, and then provide an additional
$600 annually for supplements or going to the quartermaster
system. Over all I concluded here that employees in the unit in
Thurston County were well treated vis a vis clothing allowance
per se.
I saw no persuasive evidence that the option for the
Employer to use properly reclaimed and recondition soft armor
should be eliminated. Clearly no problem existed here, as far I
could find in the testimony and other evidence provided.
Accordingly, I direct the parties to provide changes in
Article X, Section 10 Uniform Allowance, as follows:
a. Deputies shall receive $600.00 annually as a uniform
allowance. All eligible employees shall receive a cleaning
allowance of $50.00 per month. Detectives shall receive an
annual clothing and cleaning allowance of $500, paid in equal
quarterly installments beginning on January 1 of each year.
These allowances shall be effective the first of the month
following the signing of this Agreement.
b. . . . (unchanged).
c. (Amend this paragraph as appropriate to provide for the
provision of a "duty weapon" or "side arm" at the expense of the
County).
VIII. TRAINING: Article X. Section 12
The Union proposed to change the payment for mandatory "off
duty" training from the straight time rate to an overtime rate.
The Employer proposed no change in the provisions of the Section.
Since the training was a mandatory assignment during hours
when the employee is ordinarily off duty, when the employee
normally would be using the time for personal pursuits, hobbies,
family, education and other types of non-work activities, the
training takes away the "quality time" and leisure time of the
employee for which overtime should be and has been traditionally
paid. On the other hand, the Employer believed that no change in
the pay rate should occur because of the importance of the
training, and particularly because of the character and nature of
that training as an in-house attempt to train deputies regarding
sexual harassment, diversity issues, and similar sensitive
matters.
I concluded that time spent in these training activities
should be treated no differently than any other mandatory
assignment of the employee. If the attendance at these sessions
results in overtime for the employee, then the employee should
be compensated as would be the case for any other type of
overtime assignment in accordance with the overtime provisions
of Article VIII.
The proposal of the Union with regard to Article X, Section
12 shall be included in the new Agreement.
IX. FUNERAL EXPENSE: Article X. Section 14
The Union proposed to increase the allowance for funeral
expenses in the event an employee was killed in the line of duty
from $2,000 to $10,000. The Employer proposed no change in this
section.
The Union pointed out that the cost of funerals had
increased since this was added to the Agreement, and that in any
event, compensation for funeral and related expense on the death
of an employee in the line of duty was clearly justified. On the
other hand the Employer pointed out that Thurston County was the
only jurisdiction among the comparables that has this benefit.
On that basis the Employer claimed that the benefit should remain
the same at $2,000.00.
I concurred with the Employer in this case. Although the
item is insignificant in total likely expense, it is a unique
provision among the comparables. On that basis I adopt the
proposal of the Employer and direct the parties to leave Section
14 of Article X unchanged in the new Agreement.
X. NO "MAKE WORK": Article X Section 19 (New Language)
The Union proposed the following addition to the Agreement:
When an employee is called back to work under Section 6 or
Section 8 of this Article X, at the conclusion of the reason
for the call-back, the employee will be released from duty
and not be obligated to participate in any "make work" for
the duration of the minimum call-back compensation period.
The Union proposes here that an employee shall receive the
call back pay for the reason called out, and if that work is
completed prior to the end of the guaranteed pay period, the
employee shall be free to return to his off duty status. The
proposal is based on two concerns. First, the employee is called
from off duty to do a job and should not be obligated to continue
working on other activities. Too frequently the additional
duties given the employee beyond the reason for which the
employee was called out is simply "make work " trivial and
inconsequential. Currently the practice is generally to release
the employee after the reason for which called out even if the
guaranteed paid period is not used up, and thus, according to the
Union, the proposal actually puts current practice into language
of the Agreement.
The Employer concurred with the Union that generally the
employee is released if his work for which called out is
completed before the end of the guaranteed pay period. On the
other hand, the Employer insists that it pays the employee at the
overtime rate, that the employee is on duty and other tasks can
be completed efficiently. The Employer denies that "make work"
takes place, that employees are given bonifide work, and in many
cases are needed for additional reasons identical to or similar
to those for which called out in the first place. The Employer
should not be restricted from using the employee in these
circumstances.
I agree with the rationale of the Employer in this instance.
The overtime rate is the compensation for being called out for a
specified period of time, not necessarily only for the completion
of a specific task. Since the employee is paid for his time and
receives the overtime rate of pay for the call out from off
duty, the Employer is entitled to use his services to its best
advantage even if some tasks could be done on regular duty
assignment.
Section 19 No "Make Work" as proposed by the Union shall
NOT be included in the new Agreement.
XI. HOURS OF WORK: Article VIII. Section 1
A. Proposals
The proposals of the parties are attached in the Appendix.
The Union proposed to establish a work week schedule
consisting of five consecutive nine hour days with two days off
followed by four consecutive nine hour days with three days off.
Work days consist of consecutive hours worked.
The Employer proposed a weekly schedule of five consecutive
eight hour days followed by two days off.
B. Support for Proposals
1. Union
The Union pointed out that its proposal increases the number
of hours a deputy is on duty by 67 hours but increases the number
of shifts off duty by 14. Overall the County would received an
additional 3082 hours of duty time from the deputy sheriffs on
patrol. In addition, the Union claimed that minimum staffing
levels would be met at all times, that shifts could be adjusted
to provide for extra coverage during week ends when criminal
activities increase. The Union pointed out that other
jurisdictions, although allowing for use of the 5-2, eight hour
day schedule, also provide other options as a 4 days on 3 days
off 10 hour day schedule. The County's proposal increases the
number of hours on duty during the year by 48 and reduces the
days off by 12. Finally, the Union pointed out that its proposal
defines the length of the work day and work weeks, and the patrol
schedule could be delineated in the Agreement, as well. These
provisions were found in the Union's list of comparables.
The Union contended that both the deputies and the County
would benefit from its proposed new work week schedule. The
schedule will allow for consistent, known-in-advance additional
time off opportunities and fixed days off, and will help improve
health and morale among members of the bargaining unit.
Elimination of the rotating shifts under the present schedule
will be a particular advantage. Additional days off will allow
officers to have greater opportunities for a personal life
outside of work and to become more involved in family and
community affairs.
Finally, the Union maintained that its proposal will provide
the county with the flexibility to cover peak periods of calls
for service. This ability will lead to reduced overtime,
especially from call outs. Since the schedule provides for an
overlap of shifts by an hour, better communication can be
accomplished under the Union schedule. These changes will
provide enhanced community service, the Union concluded.
2. Employer
The Employer claimed that its work schedule of 5-2 maximizes
flexibility for the County since more officers can be scheduled
on duty for each day. Under the County's proposal each employee
works 12 additional shifts whereas under the Union's proposal the
number of shifts worked declines by 14. According to the
Employer, the number of shifts worked per year is a critical
factor in determining whether the Sheriff's Office can meet its
minimum staffing levels. Here the Employer noted that the
overlap of shifts, as proposed by the Union, does not add
additional personnel for the rest of the shift, that could be
done under the County's proposal. Since the 5-2 schedule can be
coordinated with the calendar week, staffing up on busier days
can readily be accomplished.
In addition, the County claimed that its schedule will
enhance training activities especially from the additional shift
coverage provided under the County's proposal. Also, the County
maintained that greater stability to the personal lives of the
deputy sheriffs can be achieved. A major concern now is the
rotating days off. But with the County's proposal the employee
knows which two days will be off duty days, and thus less
disruption in the lives of the deputies and their families.
Further, the proposal of the County will allow repeated
assignment of the same patrol to the same community, such that
the community comes to know and depend upon the deputies.
Finally, the Employer pointed out that six of the eight
comparables have a five/two schedule with an eight hour day. The
reason is clear, because this schedule works.
As for the Association's proposal, the smaller number of
shifts increases the difficulties of maintaining minimum staff
level. Although the Association addressed this issue, it
neglected to take account of sick leaves, vacations, and other
reasons why deputies may be absent from regular duty. Further,
the overlap of shifts where deputies may meet to communicate with
one another provides no real advantage for the County, the latter
argued. Deputies go on duty when they leave home or enter the
County and do not meet, so the interaction has little chance of
success. Although the staffing would be doubled at the beginning
and end of shifts, it will be short staffed for the balance of
the shift. The Employer believed that the Union proposal would
adversely affect training opportunities. In all the County is
faced with 602 fewer shifts, or 1.8 shifts each day. Overtime
will inevitably result here, the Employer stated. Further, the
County asserted that its proposal gave as great a predictability
for days off as the Union proposal.
The Employer maintained that its proposal would meet the
needs of the "public" better than either the current schedule or
the one proposed by the Union, and ask that the arbitrator adopt
it.
C. Discussion and Decision
In as much as both the Union and the Employer proposed
significant changes in the current work week schedule and work
hours arrangements, I concluded that neither believes the current
system is worthy of its continuation. Both the objection to
rotating days off and the expressed difficulties in scheduling
training under the current system, and a desire on the part of
the county to obtain increased flexibility in scheduling were
persuasive factors to support the abandonment of the current
arrangement under Article VIII and the Memorandum of
Understanding on hours worked and scheduling (HW-3) . Thus I
regarded that my essential task here was to decide to award
either the changes proposed by the Employer or those proposed by
the Union.
First, both proposals will eliminate the rotating days off
and assure employees of fixed days off over the period for which
the shift assignment is made. Second, both proposals would
permit the Employer greater opportunity to schedule additional
employees during the busier days of the week, such as on week
ends. The Union proposal could provide training opportunities
for short periods such as the 9th hour of the shift; the Employer
proposal has more shifts in which to provide training than
currently.
On the other side of the matter, the County's appraisal of
the Union proposal regarding the overlap and the reduction in the
number of shifts available were relevant considerations. I was
unconvinced that the hour overlap between shifts would benefit
the provision of services to the public, although its allows
deputies to have additional days off. The double coverage during
those overlap hours would serve little purpose, particularly
since deputies from one shift to the next may not even see one
another as no roll call is made in a central location.
Given the overlap, the County is correct that it will lose
14 shifts per deputy each year. This represents less coverage
and less service to the public, except for any minimal benefits
from the overlap hour. Although I was unable to manipulate the
schedules provided to ascertain the effect upon size of staff on
each shift, the fact that the number of shifts available to the
County decreases raised a question regarding minimum staffing
levels. To maintain the same level of service as now, the County
would either be required to hire additional employees or to call
deputies from off duty and or retain those on duty for longer
hours in an over time status. I question that the increase in
costs here is justified by the increase in the additional days
off for the deputy sheriffs.
The essential trade offs with the County's proposal is that
the deputies gain a fixed schedule with days off known and
regular and avoid the rotating days off in exchange for working
only 40 hours, or five shifts per year more than currently, even
though the number of shifts assigned per se would be increased by
12. Seven of these eight hour shifts are in lieu of the training
required now under the Memorandum of Agreement, some 54 hours (HW
-3) . I regarded the tradeoff here to be advantageous to the
deputies since it will allow them to achieve many of the goals
expressed regarding increased community affairs and personal and
family activities.
Finally, the arbitrator was aware that no other jurisdiction
cited by either party had an hours arrangement as that proposed
by the Union. Although this does not eliminate consideration of
its merits, it did place a burden on the arbitrator to find
sufficient reasons to justify its adoption over what clearly is a
prevailing practice elsewhere among the counties, not
withstanding the 4 days on, 4 days off with a 11.75 hour day in
Clark county. Six of the remaining seven among the comparable
jurisdictions selected above have a 5-2, eight hour day week,
even though additional schedules may be available at the option
of the employer.
Thus on the basis of the above considerations and rationale,
I direct the parties to adopt Article VIII, Hours of Work
proposal of the County, as follows:
Section 1 . Regular Work Hours. The normal work day for
Deputy Sheriffs shall be eight (8) consecutive hours of
work. Deputy Sheriffs will be given a thirty (30) minute
meal period at approximately mid-point of each shift.
Deputy Sheriffs will be on call during their meal period and
their meal period shall be paid. The normal work day for
detectives shall be eight (8) hours of work within nine (9)
hours, interrupted by a one (1) hour unpaid lunch.
Employees shall be assigned to five (5) consecutive days on
duty followed by two (2) days off duty.
Nothing contained herein shall prevent the establishment of
modified work schedules or days, provided, such modified
schedules shall be mutually acceptable to management and the
Association.
XII. SHIFT ASSIGNMENTS: Hours of Work Article VIII. Section 6
(New Language)
A. Proposals
The Union proposed to assign deputy sheriffs, including
their supervisors, by seniority and to do so every six months.
Shift and days off assignment sheets are to be posted and
employees enter their names on the chosen shift, and will be
assigned in order of seniority.
The Employer proposed to continue the present policy as
prescribed by the Sheriff's Office Policy and Procedures Manual
at Section 21.2.
B. Support for Proposals
1. Union
The Union supported its proposal on the basis that seniority
was an accepted principle among unions and employers, that
assignment by shifts on the basis of seniority would reward and
provide an incentive to long-term deputies for continued
effective effort and would improve morale and allow patrol
deputies to plan their personal lives and activities in concert
with their work. Citing references in Office Policy and
Procedures Manual, the Union alleged that the County already
applied seniority in some assignment to the patrol, and this
proposal is only an extension thereof of the principle.
2. Employer
The Employer opposed the Union proposal and supported the
status quo on the basis that several deficiencies existed in the
proposal of the Union. The Employer stated that the proposal
failed to take account of how specialty assignments would be
handled for each shift, and denies the County any flexibility in
this regard. Second, the County was concerned that senior
employees would be on one shift and junior ones on another which
would concentrate experience to the disadvantage of service to
the public. Also certain operational reasons, as change of shift
and supervisor for certain employees, or where a number on a
shift are off on disability, could not be accommodated under the
Union proposal, the Employer asserted. Further, no account was
taken of the working relationship between supervisors and
deputies, nor any regard given to seniority as it may apply to
rank and shift assignment. Seniority may have an adverse effect
on the morale of junior employees, a factor not considered by the
Union. Finally, given the above deficiencies, the Employer
concluded that good reason existed that six of the eight
comparable jurisdictions do not have assignment by seniority.
Accordingly, for all of these reasons, the Union proposal should
be rejected and the present system continued, the County
concluded.
C. Discussion and Decision
I concurred with the position of the Employer in this
instance. Although the principle of seniority has many advantages
to it, primarily by eliminating any suspicion of preferential
treatment in assignmenti I found the deficiencies in the Union
proposal on shift assignment by seniority as cited by the
Employer above to be too real and too many to justify the
adoption of the Union proposal. A more incremental approach, as
assigning half of the shift by seniority, and the remainder at
the discretion of the Sheriff could possibly be drafted and work.
However, with what is a relatively incomplete proposal and with
the prevailing practice of discretionary assignment by the
Sheriff in six of the eight comparables led me to set aside the
Union proposal and direct the parties to continue the present
system in shift assignment.
XIII. SICK LEAVE: Article 9, Section 4
The Union proposed to remove the maximum of 1120 hours of
sick leave that an employee may accrue under the current
Agreement. Second, the Union's proposal allows one employee to
donate sick leave benefits to another, under certain specified
conditions. The Employer opposed both aspects of the Union
proposal.
The basis for the proposal is to allow those who have excess
leave hours to donate some of them to other employees who may be
in need of them by reason of extended illnesses or injury.
Removal of the maximum allows employees to have additional hours
to donate. Further, the Union specifies that the Employer may
determine whether need exists for the donation. In all, the
Union claimed that the proposal was consistent with other
policies in the County.
The Employer claimed that the proposal was unnecessary. In
the first place, the maximum hours for accrual of sick leave
benefits are close to the average allowed among the comparables.
In addition, the long term disability program should kick in,
according to the Employer, so that accruals beyond the current
maximum are unnecessary. In addition operational needs must
always be balanced against the needs of the individual since the
County cannot be expected to hold open a position indefinitely.
Finally, the county has a "compassionate leave program" now that
permits employees to donate vacation time to others who may be
ill or injured and in need of sick leave benefits. This is a
program that most other jurisdictions do not have, yet it is
available to all county employees in Thurston County. The
Employer ask that the sick leave proposal be rejected and the
sick leave article of the Agreement continued.
I decided under the instant circumstances that the sick
leave provision in the Agreement should remain as currently
written. The alternatives indicated by the County as available
for those in need, as the long term disability and the donation
of vacation time, exceed what is available in other
jurisdictions. Given the prevailing practice or absence of it in
the comparables, I opt for the Employer's position and direct the
parties to place the current Agreement language on sick leave
Section 4, Article IX in the new Agreement.
XIV. JUST CAUSE, PERSONNEL FILES AND DISCIPLINE AND DISCHARGE
A. Management Rights: Article 2 Section 2.a(5)
The Union proposed language for this subsection as follows:
a. (5) To suspend, demote, discharge, or take other
appropriate disciplinary action against employees for
just cause. Discipline shall continue to be subject to
the grievance procedure of this Agreement as set forth
in Article V.
The Employer proposed continuation of the subsection as in
the current Agreement.
The effect of the Union proposal was to insert the word
"just" before the word I' cause" and to eliminate "in accordance
with standards as provided in the Sheriff's Office Policy and
Procedures Manual."
The Union contended that the Office Policy and Procedures
Manual provided no standards for review of discipline and the
insertion of "just cause" in this provision would do so. This
argument rested on the almost universal reference to the
principles of just cause in collective bargaining agreements and
its interpretation and application under common law by
arbitrators in resolving differences over discipline.
The Employer contended that the contents of the Policy and
Procedures Manual was a negotiable subject, that under their
administration there were no problems, and accordingly no need
existed to alter the current contract language.
Clearly there is no firm basis to question the good faith
intentions of the Employer in the administration of discipline.
Nor for that matter is there any evidence to question the good
faith intentions of the managements in the eight comparables.
Yet each of the eight counties offered by the Employer and
adopted by the arbitrator as comparables to Thurston county have
an expressly stated "discipline only for just cause" provision in
its collective bargaining agreement with deputy sheriffs. The
use of this principle for discipline is so universal that it is a
clear anachronism that no express language on just cause
discipline exists in the Thurston County Agreement.
Although the Employer contends that the statement in the
management rights provision incorporating the Policy and
Procedures Manual of the Sheriff's Office is sufficient to
assure all rights to the employee, I could find no statement in
those sections dealing with discipline that the employee would be
disciplined only for just cause. Even though the present
administration believes that is what it did, does and would do,
the next administration could make an issue of it, that the
Manual does not guarantee discipline only for just cause.
Accordingly, on the basis of the above practices elsewhere
and the rationale set forth, I shall direct the parties to amend
Section 2.a (5) of Article 2 as proposed by the Union, and as set
forth above. I shall provide below for incorporation of the
Sheriff's Office Policy and Procedures Manual as part of this
Agreement.
B. Personnel Files: Article III. Section 8 (New Language)
1. Proposals
Attached as a part of the Appendix hereto is the language
agreed to in current negotiations and the additional changes
proposed by the Union. Basically the Union proposes to specify
the periods of time over which disciplinary actions may be
retained in the record of the employee and used with reference
to subsequent disciplinary actions. The Employer opposes any
such limitations or restrictions on the use of past disciplinary
actions or record.
2. Support for Proposal and Positions
a. Union. The Union s support for a limitation of twelve
months on the materials contained in working files of supervisors
rested on the premise that these materials, both positive and
negative, should be referenced in the annual evaluation of the
employee at which time the matters are discussed with the
employee. Once this discussion is completed no need exists to
retain the material longer in the working files.
Further with regard to reprimands and suspensions, the
Union argued that these become stale and should not be available
for use by the Employer to support subsequent disciplinary
actions in any way. An employee who has performed acceptably and
without further discipline should not be penalized forever by
retention of stale adverse actions and discipline. The recent
reference to stale records in Deputy Keith's file was noted here.
Reprimands were to be removed from the personnel file after three
years, after five years for performance related suspension and
after ten years for suspension over misconduct.
The Union concluded that employees should be treated as
innocent until proven guilty, that the present policy and
practice of the Employer has led and could continue to lead to
"witch hunts'' when old records are reviewed in an attempt to
characterize the employee. The removal of the records of stale
discipline is appropriate and the arbitrator should adopt the
Union's proposal.
b. Employer. Expressing adamant opposition to the Union s
proposal to remove disciplinary actions from the personnel files
of the employee, the Employer contended that, aside from
seriously restricting legitimate uses of records by the Sheriff,
the proposal contained serious ambiguities as to the meaning of
"working files," "performance notes," "similar problem," and
inability of supervisors to retain needed training records close
at hand. The Employer expressed concern over the need to keep
certain records, such as attendance records over periods longer
than 24 months, if the employee continued to violate attendance
rules.
The ambiguities indicated above are a "recipe for
disagreement," the Employer maintained. Further the proposal
speaks to performance based and misconduct based discipline, but
no clear delineation was made between the two. Some records
should always remain in the file, such as sexual harassment
complaints and disciplinary actions. Although recognizing that
discipline may become stale, the Employer argued that this should
be determined on a case by case basis. In fact why should a
discipline that is three years and one day old be treated any
differently than one only three years old.
The County is fully in agreement on the principle of
progressive discipline, but argued that the Union is attempting
to negate it. Concern was also expressed on running afoul of
disclosure laws. Finally, the Sheriff should be able to determine
what records are necessary in the administration of the office.
This should not be spelled out in the collective bargaining
agreement as proposed by the Union in its new Section 8.4.
According to the Employer, the proposal is seriously flawed.
It is inconsistent with progressive discipline, with public
disclosure law and "improperly intrudes on the sheriff's ability
to manage the Office," and should be rejected by the arbitrator.
3. Discussion and Decision
What the Union has proposed here is neither new nor unique,
nor does it set aside the general principle of progressive
discipline. Other jurisdictions, such as Clark, Skagit, Yakima,
and Snohomish counties place limitations on the period over which
disciplinary records may be kept and used in subsequent
disciplinary actions. The elimination of the use of aged
discipline only changes the period of time over which
progression may occur. For example, take the case cited by the
Employer of the employee who received a couple of warnings or
reprimands for tardiness over two years ago that have been purged
and now is again in violation of the attendance policies.
progression has not been eliminated for the circumstance only
means that the period over which disciplinary progression will
apply has been started over on the basis that the prior
discipline served its purpose.
There may well be legitimate purposes for which disciplinary
records should be kept, as for example, as mentioned by the
Union, for reference in considering promotion of an employee
where the entire employment record may well be meaningful.
Similarly some provisions related to public disclosure acts may
require information on the past record of an employee. What the
Union seeks here is the elimination of a degree of subjectivity
in levying discipline now because different supervisors may
place less or greater weight on prior discipline. If it is stale
and gone, then that subjectivity is eliminated, and each employee
starts on the basis of what happened now, not on the distant past
record.
I found the Union proposal to be far more extensive than is
required to accomplish its purpose. What is intended is
prohibiting the use of past discipline of certain age from
consideration in present discipline, and whether or not it is
retained in the employee's personnel file or in records of the
Sheriff's office is irrelevant. Accordingly, I have revised and
abbreviated the language offered by the Union as follows:
Eliminate the proposed third paragraph under Section 8 on
the removal of the working files of the supervisor after twelve
months and substitute at 8.1 the following:
8.1 Working Files. Materials in the working files of
supervisors, such as but not necessarily limited to notes on
the performance of the employees, training records, or
commendations, that are twelve (12) months old shall not be
used in any way to support a disciplinary or other adverse
action against any employee unless the issue, alleged
policy violation, problem or deficiency has been discussed
with the employee by the supervisor and made a part of the
employee's annual performance evaluation.
Comment: Although the Employer alleged that "working files" was
ambiguous, I noted that the parties have already tentatively
agreed to the fourth (now third) paragraph under Section 8 that
permit employees to inspect working files kept in their name.
From this I presume that some understanding was reached over what
was a "working file." Second, I noted under the second paragraph
in Section 8 that an employee may have placed in the employee's
personnel file a statement containing the employee's rebuttal to
any information in the personnel file. Since I assume that the
annual evaluation form ends up in the employee's personnel file,
then the employee would be permitted to respond to and rebut any
adverse or negative aspect of the evaluation arising from such
material retained in the working file of a supervisor and
included in the annual performance evaluation.
Continuing:
8.2 Oral Warnings and Reprimands. After three years, records
of disciplinary oral warnings or written reprimands shall
not be admissible in arbitration under Article V for any
purpose unless during the three years further discipline
resulted from a similar type of offense or problem as that
upon which the oral warning or written reprimand was based.
Comment: The intent is to allow use of these past records as the
Sheriff may choose except that in the event one or more were used
to justify a suspension, disciplinary demotion or discharge, the
discipline could be grieved and arbitrated without any reliance
by the Employer upon the warnings and reprimands over three years
old, unless, of course, discipline for offenses or problems of
similar type had occurred during the three years. Further, I
chose not to remove suspensions or demotions from the record on
the basis that these represent major disciplinary matters for
which their weight would be determined on the basis of the age
and character of the discipline.
Continuing:
8.3 Investigative Reports. Information relating to Internal
Affairs investigations with a finding of exonerated, not
sustained or unfounded may not be considered or used in
support of any subsequent disciplinary action.
Comment: I concur with the Union's argument that an employee is
innocent until proved guilty, and once charged and the issue
resolved, that should be the end of the matter. Further, the
Employer argued correctly that what the Sheriff's Office needs to
do is in the discretion of the Sheriff, and of course, so long as
what is done is not contrary to or inconsistent with the
expressed language of the Agreement. Accordingly, the remaining
language suggested by the Union in its Section 8.4 is omitted
here.
Section 8.3 upon which the parties have already agreed shall
be renumbered 8.4 and included in the Agreement. Sections 8.1,
8.2 and 8.3 set forth above shall be incorporated in the new
Agreement.
C. Discipline and Discharge (New Language)
1. Proposals
The Union proposal on Discipline and Discharge is attached
as part of the Appendix hereto. This proposal in brief sets out
the requirement of discipline for just cause, identifies
available disciplinary actions, and sets out the right of an
employee to representation in disciplinary proceedings. Section
2 identified the Laudermill procedures and requirements for
notice of charges, disclosure of the basis of the allegations
and provides for the employee's opportunities for response prior
to administration of discipline. Finally Section 3 sets forth
certain procedures for Internal Affairs investigations of alleged
"serious" offenses.
The Employer proposed no change to the Agreement but to
continue the handling of discipline and Internal Investigations
pursuant to the Sheriff's Office Policy and Procedure Manual.
2. Arguments and Positions on Discipline and Discharge
a. Union. The Union pointed out that the Agreement contained
no language on discipline and discharge except a single reference
to the Policy and Procedure Manual. According to the Union, the
provisions in the Manual do not provide for handling of
discipline under principles of just cause and has limited
protection to the rights of the employee in interviews and
investigations. Other jurisdictions provide for extensive
statements on the rights of employees, not withstanding what may
be contained in the rules and regulations of the sheriff's office
in those counties (D-4 through D-11 ) . Although the County
generally has followed the requirements of Laudermill in its
hearing process, no specific protection is afforded the employee
that the evidence against the employee is available for a
response to it.
With regard to Internal Affairs investigations, the Union
maintained that Thurston County has the least specificity and
direction among other jurisdictions as to the appropriate way to
conduct such an investigation and to treat an employee subject to
that investigation. This lack of specificity permits the IA
investigator to make up process, procedures and methodology as
the investigation goes along. The Union alleged that both Chief
Hansen and Lt. Vukich acknowledged that the process and the
methods used by the IA investigator are "determined by the IA
investigator." According to the Union, this means that little if
any direction is given on how to treat a co-worker, when to
interview the co-worker, what to tell the co-worker and how to
notify the co-worker of the allegations against the worker. Here
the Union cited recent experience concerning an IA investigation
of Deputy Keith which caused considerable and unnecessary
consternation by reason of the means used to notify the deputy
that he was under investigation and for what.
The Union insisted that its proposal was not intended to
eliminate or to usurp the Policy and Procedures Manual, but
rather a proposal to change the process and methodology used to
conduct an IA investigation of a bargaining unit employee. Here
the Union cited to the comparability, if not identical
statements, in its proposal relative to that material Chief
Hansen used in training personnel at the Sheriff's Institute.
Several examples were given as related to Section 3 of the
Union's proposal. Also with regard to the administration of the
proposed language, Officer Poitras from Oregon testified to the
success of his unit in utilizing the procedures set forth in the
Union proposal and affirmed their usefulness without restricting
the ability of the employer to discipline subordinate employees.
Thus, the Union claimed that its proposal established an
objective methodology and process for IA investigations and
effectively delineated the rights of all parties involved in the
discipline process. The proposal should be adopted by the
arbitrator, the Union concluded.
b. Employer. The Employer contended that the proposal
substantially restricted the ability of the Sheriff's Office to
monitor and investigate its employees; it is an unwarranted
intrusion upon the ability to manage the work force and should be
rejected. Rather than being concerned with whether deputies
engaged in improper activity, the proposal may focus attention to
whether the Office jumped through the proper procedural hoops.
The Office approaches each internal investigation attempting to
fairly balance the right of both the Office and deputy under
investigation. The exiting investigation procedure is working
and there is no basis for awarding the Association's proposal,
the Employer concluded.
With regard to Section 1 of the proposal, the Employer
objected to the limitation on the types of discipline, and
alleged that it should be able to withhold pay increases,
restrict vehicle use, and transfer employee from shift to shift,
among similar actions. The listing of the five types of
discipline is simply unnecessarily too restrictive. Further,
the Employer was concerned about alleged ambiguities as "other
appropriate representation," and whether both the Association and
the employee could separately have representatives present at
interviews and hearings, or exactly when such a representative
should be present. The language is unclear and should not be
adopted. Here the Employer noted that under Weingarten the
employee has the right to representation and the provisions in
the Union proposal were redundant.
Going to Section 2, the Employer asserted that when the
disclosures required therein were to be made was unclear, that
the proposal calls for a decision on discipline prior to
completion of an investigation, that no explanation was given
regarding what was meant by an "informal meeting." Or could the
employee chose to respond in writing and never appear for oral
statements was unexplained as well, the Employer stated.
Exactly what the difference is between the informal and formal
hearing was unclear. The proposal uses the expression that "the
provisions of just cause and due process 'I will assure the
employee full opportunity to be heard, but without explanation as
to exactly what those provisions are, the Employer noted. Also,
no explanation was given on the relationship between the formal
meeting or hearing and existing Weingarten rights? If merely a
restatement, it becomes duplicative and confusing. Lastly, the
ten day deadline to issue a decision may be impossible to meet if
additional investigation results from information provided by the
employee. No leeway is allowed here in the Union's proposal.
The Employer alleged that the proposal was problematic,
also, at Section 3. What range of incidents must be investigated
was not specified, and may even include accidents. The
application of these rules and procedures at any time would
seriously cripple the Office to be responsive to its public, the
Employer contended. The most onerous aspect of the Section
related to the requirement to notify the employee 72 hours in
advance of any interview where the investigation could lead to
economic sanctions. Several examples were given where such a
requirement would unnecessarily handicap a proper investigation.
Clearly the provision of all materials to the employee prior to
interviewing the employee or completing the investigation would
hamper the investigation, the Employer stated, and will not work,
as for example in case of investigating sexual harassment. The
Office must be able to get at the truth in all circumstances.
Section 3 (c) is ambiguous, the Employer stated for it was
not clear to what Section 3(a) and 3(b) did not apply, whether
the 72 hour notice or the provision of all materials. 3(f) limits
interviewing to the shift of the employee, which is impractical.
The Office does the interviewing and should be done by it at its
choice of time since the employee is on employer's time anyway.
Also, 3(h) is misleading, since any internal investigation is
inherently intimidating. Finally 3(k) is unclear on when tape
recordings are required, and if for all interviews, such as for
tardiness or similar minor infractions, the provision is clearly
improper.
The multiplicity of problems and ambiguities with the
Union's proposal justifies its rejection by the arbitrator and
the continuation of the current policies and practices, the
Employer concluded.
3. Discussion and Decision
Two principles are involved in the disciplining of
employees. The first involves the rights of management to manage
its business and that includes directing, correcting and
disciplining employees when necessary. On the other side, there
is the right of employees to an objective, fair and just
treatment regarding their conduct, where adequate safeguards are
provided against arbitrary and capricious decision making by
employer representatives. What is demanded in a collective
bargaining agreement is some clear balance between these two sets
of rights.
Although this balance can be struck by the parties in the
context of a single relationship, here under statute the
arbitrator is instructed to examine what are the conditions of
employment, including the process and procedures for disciplining
employees, among like employers. Although no clear set of
procedural safeguards to assure only just cause in disciplining
employees can be found in any one agreement among the comparables
to Thurston County, a majority of those comparables have
relatively extensive provisions for handling the investigation of
alleged misconduct and the administration of discipline when
appropriate. Here it is clear that the County has no bargained
provisions per se in its agreement with the deputy sheriffs that
expressly provides for just cause in the disciplining of
employees nor any other provisions concerning investigation of
misconduct and administering discipline.
Although the County points to the Sheriff's Office Policy
and Procedures Manual, I could find no reference to or statement
in the Manual that expressly guarantees to an employee the
protections implicit and explicit in a just cause disciplinary
proceeding. Some limited aspects of due process protection were
noted such as certain notices. I find no reference, for example,
that all of the evidence against the employee upon which
discipline will rest will be provided to the employee by the
employer prior to the imposition of discipline such that the
employee has an opportunity to respond before the Employer has
cast the disciplinary action in "stone." I concurred further with
the Union that some lack of specificity exists in how
investigations and related investigative interviews will be
conducted, and what rights the employee has during those
interviews.
There is no basis in the record to question the good faith
and good intentions of the Employer here. But if advanced
preparation for potential problems of arbitrary and capricious
treatment is ever justified, it is in the area of the protections
of the rights of the employee to fair and evenhanded treatment
where rules and procedures are uniformly applied and enforced.
Further, setting forth certain procedures and conditions relative
to the disciplining of employees in the Agreement makes those
more readily understood in the appropriate context. I found the
Manual confusing and duplicative, and although all matters were
not covered in the proposal of the Union, I concurred that
changes of the kind proposed there were required in the
Agreement. Accordingly I have awarded the slightly revised Union
proposal as a new Article on Discipline and Discharge, as set
forth below.
DISCIPLINE AND DISCHARGE
Section 1. Just Cause. Disciplinary action shall be imposed upon
an employee only for just cause.
In the administration of discipline, the provisions of the
Sheriff's Office policy and procedure Manual shall apply unless
contrary to or inconsistent with expressed language in this
Agreement.
Section 1.1 Disciplinary Actions. Disciplinary action shall
include only the following:
a. Oral Warning
b. Written Reprimand
c. Suspension without Pay
d. Demotion
e. Discharge
Disciplinary action will normally be progressive in nature, but
the level of discipline administered may depend upon the
seriousness of the offense.
Section 1.2 Association and Employee Rights. The Association
shall have the right to process any disciplinary action as a
grievance through the grievance procedure, except for an oral
warning, and except for employees serving an initial probationary
period who are discharged.
If the County has reason to discipline an employee, the
County shall do so privately and in a manner that will not
embarrass the employee before other employees or the public.
The employee and the Association shall be entitled to
Association representation and/or other appropriate
representation at all meetings attended by the employee where
discipline is being considered for that employee.
Section 2. Notice and Opportunity to Respond.
Upon reaching the conclusion that probable cause exists to
discipline an employee with a written reprimand, or a suspension
without pay, or a demotion, or discharge, the Sheriff or his
designee shall provide the employee and the Association with the
following prior to the administration of discipline:
a. the nature of the allegation(s) or charge(s) against the
employee.
b. a copy of the complaint against the employee.
c. a copy of all materials a part of or related to the
investigation upon which the allegation(s) or charge(s) are
based.
d. the directives, policies, procedures, work rules,
regulations or other order of the County that allegedly was
violated.
e. what disciplinary action is being considered.
Section 2.1 . Employee's Response. The affected employee and the
Association shall have the opportunity to respond to the
allegation(s) or charge(s) orally or in writing, normally within
seven (7) days from receiving the information and materials
provided by the County in Section 2 above and to do so prior to
the pre-Disciplinary meeting.
Section 2.2. pre-Disciplinary Meeting. A formal opportunity to
respond to the allegation(s) or charge(s) shall occur at a Pre-
Disciplinary meeting conducted and presided over by the Sheriff
or his designee, who shall have the authority to impose or to
recommend the proposed disciplinary action. Reasonable advanced
notice of this meeting, its time and place shall be given the
employee and the Association. This meeting shall be informal.
The employee and the Association shall be given full opportunity
to be heard, to respond to the allegation(s) or charge(s), and to
have the responses considered prior to the imposition of
discipline.
Section 2.3. County's Decision. Within a reasonable time but not
beyond twenty calendar days from the date of the pre-Disciplinary
meeting, the Sheriff or his designee shall issue a written
decision imposing discipline, exonerating the employee or taking
such other action deemed appropriate.
Section 3. Investigative Interviews/Internal Affairs
Investigations. The interview of an employee concerning
action(s) or inaction(s) which, if proved, could reasonably lead
to a suspension without pay, demotion, or discharge for that
employee, shall be conducted under the following conditions and
procedures:
a. The employee shall be informed in writing at a reasonable
time in advance of the interview whether or not the County
believes the employee is a suspect in the investigation,
with a copy of the notice to the Association.
b. If an employee is considered a suspect, at a reasonable time
in advance of the investigative interview, the employee
shall be informed in writing, with a copy to the
Association, of the nature of the investigation; the
specific allegations related thereto; and the policies,
procedures and or laws that form the basis for the
investigation; and shall be advised that an opportunity to
consult with an Association representative will be afforded
prior to the interview.
c. The requirements of Sections 3.a and 3.b of this Section
3 shall not apply if (1) the employee is under investigation
for violations that are punishable as felonies or
misdemeanors under law, or (2) notices to the employee would
jeopardize the administrative investigation.
d. After a complainant has been interviewed regarding an
action or inaction of an employee and the county deems
further investigation is necessary, the employee shall be
provided a copy of the complaint as soon as practical, with
a copy forwarded to the Association.
e. The employee shall have the right to have an Association
representative present during any investigative interview
which may reasonably result in a suspension without pay, a
demotion or discharge of the employee. The opportunity to
have an Association representative present at the interview
or the opportunity to consult with an Association
representative shall not unreasonably delay the interview.
However, if the interview begins with the consent of the
employee in the absence of an Association representative but
during the interview the employee concludes that assistance
is required by reason of increasing seriousness of the
disciplinary problem, the employee shall be allowed a
reasonable time in which to obtain an Association
representative.
f. To the extent reasonably possible all interviews under this
Section shall take place at the Sheriff's Office facilities.
g. The County may schedule the interview outside of the
employee's regular working hours, however in that event the
appropriate overtime rate and/or irregular hours payment
shall be made to the employee.
h. The employee shall be required to answer any question
concerning a non-criminal matter under investigation and
shall be afforded all rights and privileges to which the
employee is entitled under State or Federal laws.
i. The employee shall not be subject to abusive or offensive
language or to coercion, nor shall interrogators make
promises of award or threats of harm as inducements to
answer questions.
j. During an interview, the employee shall be entitled to such
reasonable intermissions as the employee may request for
personal physical necessities.
k. All interviews shall be limited in scope to activities,
circumstances, events and conduct that pertain to the
action(s) or inaction(s) of the employee that is the subject
of the investigation. Nothing in this Section 3 shall
prohibit the County from questioning the employee about
information that is developed during the course of the
interview.
l. If the Sheriff's Office tape records the interview, a copy of
the complete tape recorded interview of the employee, noting
the length of all recess periods, shall be furnished the
employee upon the employee's written request. If the
interviewed employee is subsequently charged with
misconduct, at the request of the employee or on its own
volition, the County shall transcribe the recording and
shall provide a complimentary copy to the Association in
behalf of the employee.
m. Interviews and Internal Affairs investigations shall be
concluded without unreasonable delays.
n. The employee and the Association shall be advised promptly, in
writing, of the results of the investigation and what future
action, if any, will be taken regarding the matter
investigated.
Comments:
A few comments may assist the parties to understand the
bases upon which certain changes were made in the proposal of the
Union as well as consideration of Employer objections. First,
the list of disciplinary actions excludes transfers and
reassignments. These are not discipline but represent exercise
of the Employer's right to assign employees, say, from one shift
to another, reassigning an employee to work with out a vehicle,
and so forth. I consider the expression "the employee and the
Association" in the last paragraph of Section 1.2 to represent
two entities and each could have a representative present if
desired.
Under Section 2, disclosures are to be made "prior to the
administration of discipline" and thus before the Laudermill
pre-disciplinary hearing. Although a meeting may occur under
Section 2.1 that allows the employee to discuss the charges and
evidence informally with supervisors it is not required. The
Laudermill pre-Disciplinary meeting (hearing) , although informal
in nature, is mandatory and provides the employee and the
Association full opportunity to respond to the proposed
discipline. As for the time line on making a decision
following the pre-Disciplinary hearing, if further investigation
is required, no restrictions prevents that eventuality since the
employer" can take such other action deemed appropriate."
I concurred with the Employer regarding the 72 hour
requirement on notice for an investigative interview and the
necessity to provide all materials thus far obtained relative to
the investigation to the employee prior to interview. This
interview is the opportunity for the employee to tell what that
employee knows about the matter under investigation. By current
rule and Section 3.h the employee is obligated to respond to all
questions and to cooperate in the investigation. Telling the
truth as the employee sees it does not require extended notice of
an interview or recourse to all materials the Employer has then
accumulated. Knowledge of the employee's status vis a vis the
investigation and the nature of the allegations guarantees
adequate safeguards of the employee's rights, given the
procedures set out in Section 3.
The Employer's objections to subsections 3.c, f, h, and k,
of the Union's proposal have been remedied by clarification of
language in response to the arguments made in brief. The
procedures of Section 3 apply only to "serious" or "major"
alleged misconduct, and thus issue raised by the Employer over
the hoops the Sheriff must go through would not apply to "minor"
issues, as tardiness or attendance matters.
The parties are directed to incorporate the new Article on
Discipline and Discharge set out above in their Agreement.
XV. TERM OF AGREEMENT: Article XV
The Union proposed the addition of an evergreen clause in
this Article, to the effect that "In addition, pursuant to
applicable RCW's and WAC's, this Agreement shall remain in full
force and effect during the term of any negotiations for a
successor Agreement." The Union insists that this is provided
for by law, is the current practice, and should therefore be
incorporated in to Article XV. The Employer argued that RCW
41.56.070 prohibits agreements beyond three years, and that the
addition of this clause could extend the Agreement in violation
of the law, which would invalidate the Agreement.
I concluded that the Employer's argument raised enough of
doubt as to the wisdom of including an expressed statement as
that above that I decided to reject the Union's suggestion. The
matter is not of great consequence since law does require
maintenance of terms and conditions until a new agreement is
negotiated. Since it the leaders of the Union and the senior
officials of the county/Sheriff's Office that negotiate and
these persons are sophisticated regarding the law, there is
little need to put the evergreen clause into the Agreement for
the general information of the members of the bargaining unit.
The term of the Agreement shall be three years, effective
January 1, 2000 and ending on December 31, 2001
XVI. SUMMARY AWARDS
The decisions and awards of the arbitrator have been set
forth at the end of each of Sections III through XV, and will not
be reproduced here.
Unless otherwise stated, all awarded changes shall be
effective on January 1, 1999 at the beginning of the term of the
Agreement.
Finally, pursuant to the request of the parties the
arbitrator retains jurisdiction solely over his awards in this
case in order to assist the parties in the interpretation and
application of the awards, if necessary. This jurisdiction shall
end on February 1, 2000 unless a written request for assistance
from either party is pending at that time.
Respectfully Submitted
KMM:mem Kenneth M. McCaffree
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