INTEREST ARBITRATIONS

Decision Information

Decision Content

The Port of Seattle

And

Teamsters Local Union No. 117

Interest Arbitration

Arbitrator:         Kenneth M. McCaffree

Date Issued:      09/20/2001

 

 

Arbitrator:         McCaffree; Kenneth M.

Case #:              15431-I-00-00348

Employer:          The Port of Seattle

Union:                Teamsters Local Union No 117

Date Issued:      09/20/2001

 

 

IN INTEREST ARBITRATION

 

Between                                                                      )

                                                                                    )           OPINION, DECISION AND AWARDS

TEAMSTERS LOCAL UNION NO 117                 )                                                          

(Union, Teamsters)                                                    )                                          by

                                                                                    )

                        -and-                                                    )                       Kenneth M. McCaffree

                                                                                    )                              P.O. Box 10459

THE PORT OF SEATTLE                                        )                  Bainbridge Island, WA 98110

(Employer, Port)                                                         )

                                                                                    )

Re:      2000 - 2002 Agreement                                 )

            Terms                                                             )           Case No: PERC 15432-1-00-348

                                                                                    )

Representatives:                                                       )                      

            For the Union:                                                )           Dates of Hearing: Mar 22

                        Spencer Nathan Thal             )           23; 26-28; Apr 17-18, 2001

                                                                                    )

For the Employer:                                                      )           Place of Hearing: Seattle, WA

            Otto G. Klein, IIII                                          )

                                                                                    )           Date of Award:  Sept 20, 2000

__________________________________________)

                                                                       

 

TABLE OF CONTENTS

 

I.          INTRODUCTION

                        A.        Nature of Proceedings                                                             1

                        B.        The Bargaining Unit                                                                2

                        C.        Applicable Statutory Provisions                                              3

                        D.        The Issues                                                                                5

                        E.         General Hearing Procedures and Documents                        7

           

II.        The Issue of Comparables

                        A.        Positions and Proposals of the Parties                                    8

                        B.        Application of Statutory Standards and Guidelines 11

                        C.        Selection of Comparables                                                      14

 

III.       BASIC WAGE INCREASE (Item 11)

                        A.        Proposals                                                                                18

                        B.        Contentions in Support of Proposals            

                                                1.         Union                                                              18

                                                2.         Employer                                                        20

                        C.        Analysis of the Data on Wages

                                                1.         The Compensation Package                          25

                                                2.         A "Catch-up" in Wages                                27

                                                3.         The Wage Increase for 2000

                                                            a.         Supplemental Compensation

                                                                        Elements                                             30

                                                            b.         Additional Factors in Wage

                                                                        Increase                                             

                                                                        (1).       Cost of Living             34

                                                                        (2).       Other Bargained

                                                                                    Settlement by Port                 35

                                                                        (3).       Settlement Among

                                                                                    comparables                           36

                                                                        (4).       Employee Turnover               37

                                                            c.         Union Arguments for 5% Wage

                                                                        Increases                                           

                                                                        (1).       King County Study                 39

                                                                        (2).       Staffing Levels                       39

                                                                        (3).       Ability to Pay                          40

                                                            d.         Conclusion on 2000

                                                                        Wage Increase                                   41

                                                4.         Wage Increases for 2001 and 2001              41

                        D.        Decision and Award:  Basic Wage Increases

                                                (Item 11)                                                                     43

 

IV.       EDUCATIONAL INCENTIVE ELIGIBILITY       (Item 21)

                         A.       Proposals                                                                                44

                         B.       Contentions in Support of Proposals

                                                1.         Union                                                              44

                                                2.         Employer                                                        45

                        C.        Analysis                                                                                  46

                        D.        Decision and Award:  Educational Incentive

                                    Eligibility                                                                                48

 

V.        CANINE TEAM DIFFERENTIAL (Item 12)

                        A.        Proposals                                                                                50

                        B.        Contentions in Support of Proposals

                                                1.         Union                                                              50

                                                2.         Employer                                                        51

                        C.        Analysis                                                                                  52

                        D.        Decision and Award:  Canine Team Differential

                                    (Item 12)                                                                                 53

 

                        (Discussion of each issue follows the above pattern)

 

VI.       DIVE TEAM DIFFERENTIAL (Item 13)                                                   54

 

VII.     TACTICAL SERVICES DIFFERENTIAL (Item 14)                     57

 

VIII.    DETECTIVE DIFFERENTIAL  (Item 15)                                      60

 

IX.       CRISIS NEGOTIATION UNIT DIFFERENTIAL (Item 16)                    62

 

X.        BICYCLE PATROL DIFFERENTIAL (Item 17)                                       64

 

XI.       FIELD TRAINING OFFICER DIFFERENTIAL (Item 18)                      66

                       

XII.     EVIDENCE IDENTIFICATION /CRIME SCENE SPECIALIST

                        DIFFERENTIAL PAY (Item 19)                                                      72

 

XIII.    NIGHT SHIFT PREMIUM (Item 20)                                                         75

 

IV.       OPTION NOT TO APPEAR ON “MAKE-UP” DAY (Item 2)

             A.       Proposals                                                                                           77

             B.       Contentions in Support of Proposals            

                         1.        Employer                                                                               77

                         2.        Union                                                                                     79

             C.       Analysis                                                                                              80

             D.       Decision and Award: Option Not to Appear on “Make-Up“          85

 

XV.      CANINE OFFICERS’ WORK SCHEDULE (Item 3 )                                86

 

XVI.    VACATION ACCRUAL AFTER 22 YEARS OF SERVICE (Item 4)       90

 

XVII.   TAKE HOME VEHICLES: BOMB DISPOSAL UNIT (Item 5 )  93

 

XVIII.             TAKE HOME VEHICLES: CRIMINAL INVESTIGATION (Item 6)     97

 

XIX.    LIGHT DUTY (Item 7)                                                                                102

 

XX.      RETIREES‘ HEALTH AND WELFARE CONTRIBUTION (Item 8)  107

 

XXI.    PACIFIC COAST BENEFIT TRUST CONTRIBUTION (Item 9)            112

 

XXII.   ELIGIBILITY FOR CLOTHING ALLOWANCE (Item 10)                      115

 

XXIII. BILL OF RIGHTS (Item 22)

            A.        Proposals                                                                                            119

            B.        Contentions in Support of Proposals

                        1.         Employer                                                                                119

                        2.         Union                                                                                      124

            C.        Analysis and Discussion

                        1.         Preliminary considerations                                                    126

                        2.         "Uncontested" Language                                                     128

                        3.         Intimidation                                                                            129

                        4.         Employer's Release of Information                                      130

            D.        Decision and Award: Bill of Rights                                                   134

            E.         Appendix to XXIII - Employer Proposal and Appendix B   136

 

XXIV. DRUG/ALCOHOL TESTING (Item 23)

            A.        Proposals                                                                                            139

            B.        Contentions in Support of Proposals

                        1.         Employer                                                                                  139

                        2.         Union                                                                                        124

            C.        Analysis and Conclusions on Employer‘s Proposals                          141

            D.        Pre Conditions - Testing Under Reasonable Suspicion                     142

            D.        Decision and Award:  Drug/Alcohol Testing, Appendix             C-145

 

XXV.   DRIVES AND WORK JURISDICTION (Item 1)

            A.        PROPOSALS                                                                            147

            B.        Contentions in Support of Proposals

                                    1.         Employer                                                                       147

                                    2.         Union                                                                             151

            C.        Analysis and Discussion                                                                       156

            D.        Decision and Award:  Drives and Work Jurisdiction                          160

 

 

IN INTEREST ARBITRATION

 

Between                                                                      )

                                                                                    )           OPINION, DECISION AND AWARDS

TEAMSTERS LOCAL UNION NO 117                 )                                                          

(Union, Teamsters)                                                    )                                          by

                                                                                    )

                        -and-                                                    )                       Kenneth M. McCaffree

                                                                                    )                              P.O. Box 10459

THE PORT OF SEATTLE                                        )                  Bainbridge Island, WA 98110

(Employer, Port)                                                         )

                                                                                    )

Re:      2000 - 2002 Agreement                                 )

            Terms                                                             )           Case No: PERC 15432-1-00-348

                                                                                    )

Representatives:                                                       )                      

            For the Union:                                                )           Dates of Hearing: Mar 22

                        Spencer Nathan Thal1                        )           23; 26-28; Apr 17-18, 2001

                                                                                    )

For the Employer:                                                      )           Place of Hearing: Seattle, WA

            Otto G. Klein, IIII2                                        )

                                                                                    )           Date of Award:  Sept 20, 2001

__________________________________________)

                                                                       

I.          INTRODUCTION.

 

            A.        NATURE OF PROCEEDINGS

 

            These proceedings arose under the Public Employees

Collective Bargaining Act of Washington (the ’Act”). The Union

and the Port are parties to a collective bargaining agreement

covering the Police Officers bargaining unit whose term expired

on December 31, 1999. These parties began negotiations for a

new agreement in the summer of 1999 but were unable to reach

agreement on a new contract by the summer of 2000. At this time

the issues in dispute were submitted to mediation through the

Public Employment Relations Commission (PERC) . However,

after a reasonable period of mediation parties were still unable to

reach agreement on the terms of a new collective bargaining

agreement. Accordingly on October 17, 2000, the Executive

Director of PERC certified certain issues for binding interest

arbitration. The parties selected the undersigned as the

neutral arbitrator to conduct the arbitration hearing and to

render a final and binding decision on the unresolved issues.

This arbitration ensued pursuant to the Act (U 3 ; T 1, p 5:20-

25).

_______________

1  Staff Attorney, Teamsters Local Union NO. 117, 553 John

Street, Seattle, WA 98109. (206) 441-4860.

 

2  Member, Summit Law Group PLLC, 1505 Westlake Avenue North,

Suite 300, Seattle, WA 98109-3050. (206) 676-7000.

 

            B.        THE BARGAINING UNIT

 

            The arbitration concerned the hours, wages and conditions

of employment of the bargaining unit that consisted of the

uniformed commissioned police officers below the rank of

Sergeant and employed by the Port (U 1, p 1) . These officers are

assigned duties in connection with the operation of the Seattle-

Tacoma International Airport ("SEA TAC") and for work in the

seaport and harbor areas of Seattle. The Port of Seattle Police

department has jurisdiction at SEA TAC, the Marine Terminals,

and at other related properties owned and or operated by the

Port, although by statute its jurisdiction extends throughout

King County and across the state in accord with the Washington

Mutual Aid Peace Officer Powers Act of 1985 (U 9).

 

            The Department has an authorized strength currently of 99

fully commissioned officers, of which 79 are officers below the

rank of Sergeant. Of these authorized positions, all were

filled except for two, giving a current staff of 77 officers (U

10, 12; E 42-44). These officers are assigned to two

divisions: the Administrative Division, where nine officers are

in the Investigations Section and three in the Support Services

Section (U 11; E 42). The remaining officers work in the Police

Services Division that includes the uniformed police patrol and

related special teams and units.

 

            C.        APPLICABLE STATUTORY PROVISIONS: THE ARBITRATOR'S TASK

 

            As set forth in RCW 41.56.430 and Chapter 131, Laws of

1973, there exists a public policy against "strikes by uniformed

personnel as a means of settling their labor disputes" and calls

for an "effective and adequate alternative means of settling

disputes" (E 20). Following efforts to resolve disputed issues

by mediation, the interest arbitration process concludes the

"alternative means" for settling disputes in the absence of work

stoppages. The law prescribes the decisions of the interest

arbitration panel as final and binding, except for court

challenge solely on the grounds that the decision was arbitrary

or capricious (E 21). However, the legislature saw fit to

provide "additional standards or guidelines to aid it (the

interest arbitration panel) in reaching a decision" and in RCW

41.56.465 directs the arbitrators to take into consideration the

following factors:

 

            (a) The constitutional and statutory authority of the

employer;

 

            (b) Stipulations of the parties;

 

            (c) (i) ... (A) comparison of the wages, hours, and

conditions of employment of personnel involved in the

proceedings with the wages, hours, and conditions of employment

of like personnel of like employers of similar size on the west

coast of the United States;

 

            (d) The average consumer prices for goods and services,

commonly known as the cost of living;

 

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

(d) of this subsection during the pendency of the proceedings;

and

 

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

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

traditionally taken into consideration in the determination of

ages, hours and conditions of employment.   ....

 

            In this context, the interest arbitration process is a

straightforward extension of the collective bargaining of the

parties and not a separate independent activity of its own.

Such a view however places a heavy burden on the arbitrators,

for it requires of them an attempt to ascertain what the parties

would have done in the absence of the prohibition of strikes and

lockouts and in the presence of an open private sector free

labor market environment. As I wrote elsewhere, “at best a

decision (under these circumstances) will seldom be more than a

rough approximation of this goal” (Thurston County, McCaffree,

1999, p-4).  Most subject to error are judgments on the relative

‘holding power” or “bargaining strength“ of each party and its

relative feelings of importance on particular issues. But be

that as it may be, the arbitrators are required, within the

standards and guidelines of the statutes, to mold the objective

evidence of “market” (comparable) conditions, the relative

weight of pieces of that evidence, and a good faith evaluation

of bargaining strength and staying power of the parties on

particular issues, into a reasonable package of wages, hours and

conditions of employment.

 

            One further matter should be noted with regard to the

standards and guidelines in the Act as these related to the task

of the arbitrator. Although the statute is mandatory with

regard to the consideration of the above standards and

guidelines, the Act provides neither for the relative weight of

these factors as one relates to the others nor for the

measurement of any of them. These are matters left to the

judgment and discretion of the arbitrators that will depend, to

some extent, upon the context of the bargaining relationship

involved.

 

            D.        THE ISSUES

 

            The parties succeeded in resolving several issues among

those certified by the Executive Director of PERC on October 17,

2000 (E 1). Issues over "overtime rates, " "parking" and

"physical fitness" were settled prior to the hearing. In

addition, differences between the parties on "court

appearances, " "long term disability, '' and "expanded

jurisdiction" were resolved during the hearing and or prior to

the submission of post hearing briefs. Each of the parties

discussed the following issues in their briefs for decision by

the arbitrator. I follow the order set forth by the Union to

identify issue and relevant current Agreement provision, if any.

 

            1.         Drives: Article VIII and Appendix 0

 

            2.         Make Up Day and the Option Not to Appear: Article XIII,

Section 1.a.5.

 

            3.         Canine Officers' Work Schedule: Article XII, Section

1.a.

 

            4.         Vacation Accrual After 22 Years of Service: Article XIV.

 

            5.         Take Home Vehicles: Bomb Disposal Unit: Article XIII,

Section 9 and Appendix Q.

 

            6.         Take Home Vehicles: Criminal Investigation Section: New

Language at Article XXI in new Agreement (by Union).

 

            7.         Light Duty: Article XXII, Section 2.

 

            8.         Retirees' Health & Welfare Contribution: Letter of

Understanding, p. 56 of Agreement.

 

            9.         Pacific Coast Benefits Trust Contribution: Article XIX,

Section (m).

 

            10.       Eligibility for Clothing Allowance:  Article XVIII,

Section 3 .

 

            11.       Basic Wage Increases:  Appendix A.

 

            12.       Canine Team Differential: Appendix A, Section II.G.

 

            13.       Dive Team Differential: Appendix A, Section II.H.

 

            14.       Tactical Services Differential: Appendix A, Section

11.0.

 

            15.       Detective Differential: Appendix A, Section II. E.

 

            16.       Crisis Negotiation Unit Differential: New Provision (by

Union).

 

            17.       Bicycle Team Differential: New Provision (by Union).

 

            18.       Field Training Officer Differential: Appendix A,

Section II.M.

 

            19.       Evidence Technician/CSS Differential Pay: Appendix A,

Section II.I.

 

            20.       Night Shift Premium: New Provision (by Union).

 

            21.       Education Incentive Eligibility: Appendix A, Section

II.C.

 

            22.       Bill of Rights: Appendix B.

 

            23.       Drug Testing: Appendix C

 

            In addition to the above issues, the Employer urged that

the effective dates be prospective for each issue except the

general wage increase that had been agreed by the parties as

retroactive. The Union made no similar general proposal on

effective dates, but did address the effective dates for some

specific issue proposals.

 

            E.         GENERAL HEARING PROCEDURES AND DOCUMENTS

 

            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. Over the course of the seven days of hearings, the

Union called 20 witnesses and the Employer five. The names and

days on which persons testified are found in the seven volumes

and over 1400 pages of transcript that contain the testimony and

record of the proceedings.

 

            In addition, the arbitrator accepted 236 pages of exhibits

from the Employer. References to Employer exhibits are to the

page number among the 236. In addition the Employer submitted

the collective bargaining agreements covering the police

officers in the cities of Auburn, Bremerton, Federal Way, Kent,

Kirkland, Redmond, Renton, and Tukwila. Finally as exhibits 237

and 238, the Employer offered the King County

“Classification/Compensation Project Report“ of fifty pages and

the “Survey of Police Services, “ San Francisco International

Airport, 1998.

 

            The Union provided 86 exhibits contained in two large

notebooks. Among these exhibits was a copy of the current

agreement between the Union and the Port, the sections of the

new agreement already tentatively agreed to, and copies of the

collective bargaining agreements for Seattle, Tacoma, King

County, Renton, Bellevue and Everett. Since many of the

exhibits were several pages in length, citations include exhibit

number and page of the exhibit where relevant.

 

            The parties submitted post-hearing briefs, received by the

arbitrator on or about June 25, 2001. At this time the

arbitrator considered the hearings closed and the matters in

dispute readied  for a final and binding decision and under the

provisions of the Act. In the submission of briefs the parties

waived the provisions of RCW 41.46.450 that specifies a thirty-

day time limit for issuing a decision, and agreed to "allow the

arbitrator whatever is necessary time to complete his decision"

"to do the job right" (T VII, 182:19 - 183:3). The neutral

arbitrator, alone, was charged with the responsibility to issue

he Opinion, Decision and Award in this case, i.e., the parties

chose not to create an arbitration panel by each naming its own

artisan arbitration panel member.

 

II.        THE ISSUE OF COMPARABLES

 

            A.        POSITIONS AND PROPOSALS OF THE PARTIES ON "COMPARABLES"

 

            A central aspect of the determination of hours, wages and

conditions of employment under interest arbitration is deciding

hat should constitute the "comparables" against which the

instant circumstance should be examined. The parties have each

proposed a set of "comparables" and argued for their respective

set on the basis of the standards and guidelines set forth in

the statute noted above.

 

            The Employer provided a list of eight municipal

jurisdictions as "comparables. " These were selected on the

basis of the size of the Police Departments in each

jurisdiction. The eight jurisdictions included Auburn,

Bremerton, Federal Way, Kent, Kirkland, Redmond, Renton and

Tukwila. The staffing levels in these jurisdictions were

between 60% and 130$ of the level for the Port. According to

the Employer, this characteristic of these departments meets the

criterion in RCW 41.56.465(1) (c) (i) to make comparisons of "like

personnel of like employers of similar size." The Employer noted

that the traditional criteria of population, geography and

property evaluation for tax purposes for determining the size of

the employer were not available for the Port. Thus the Employer

argued that the size of the Police Department was a proper

substitute in determining the size of other employers whose

wages, hours and conditions of employment of police officers in

hose jurisdictions could be used to determine the wages, hours

and conditions of employment of the police officers at the Port.

 

            In addition, the Employer pointed out that most of these

jurisdictions were adjacent to and very near the Port's main

activity at the SEA TAC airport in south King County and south

Puget Sound (T V, 119:19 - 120: 2). Also, the area of these

jurisdiction is one in which a majority of the people who work

for the Port reside. Further, the Port Police Department has

entered into cooperative activities with a number of the eight

jurisdictions, such as the Valley SWAT, the Narcotics Task

Force, South King County Detectives and association among the

police chiefs and administrative personnel of the departments (T

v, 120).

 

            The Union claimed, on the other hand, that the parties have

'a well-established historical practice of using a set of

comparables--known as the Seattle Seven-which represents a quid

pro quo compromise achieved after lengthy negotiations." These

jurisdictions included Seattle, King County, Renton, Bellevue,

Everett, Tacoma and the Port.

 

            According to the Union, in 1993 negotiations the parties

reached a compromise to use the Seattle Seven after the Union

had proposed using California airport jurisdictions and the Port

had indicated its desire to follow the smaller jurisdictions

adjacent to SEA TAC (T III, 10-11). Similarly in 1996

negotiations, the parties took the same positions as before, but

again compromised to use the Seattle Seven as the basis for

reaching an agreement (T III, 15-17). As part of the 1996

negotiation, the part to a "Mid-term Opener" with

regard to compensation (U 1, p 55). The Opener provided for a

compensation survey to be based on the compensation of the

Seattle Seven and acknowledged an agreement between the parties

that "for the purposes of RCW 41.56.465(1) (c) (i), (like

personnel of like employers) comparable jurisdictions shall be

the cities of Seattle, Everett, Tacoma, Bellevue, and Renton,

and King County."

 

            The Union reported that at only one negotiation session for

the new agreement did the Employer ever argue for comparables

among the smaller jurisdictions and this it did in conjunction

with comparisons based on the Seattle Seven. However, the

Union rejected the smaller jurisdiction comparables as

''irrelevant, contending that the parties had already

established the Seattle Seven (T IV, 144:3-12). This

translated into a claim that the interest arbitrator should

examine and consider the Seattle Seven comparables under the

statute provisions of "stipulations of the parties" and "other

factors ... that are normally or traditionally taken into

consideration.. .If (RCW 41.56.165(1) (b) and (f); (Un Br, p 48).

 

            In addition and in conclusion, the Union claimed support

for its position on the use of the Seattle Seven on the basis

that bargaining history and a consistent past practice were used

in several prior interest arbitrations to support sets of

comparables (Un Br, p 48). It further maintained that the past

practice of the parties should be continued unless the Employer

could show compelling reasons for not doing so, which the Port

ailed to do in this instance.

 

            The Port acknowledged the desirability of maintaining some

continuity and stability in labor relations, but argued here

that "at no time was there ever an agreement on the appropriate

comparables to be used for comparison" in the current

negotiations (T V, 83:12-25; see testimony of Endressen and Kirk

generally, and Tessier at T IV, 159; 161; 165). The Port did

not reject use of the Seattle Seven in its entirety in this

arbitration. It did maintain, however, that the wages, hours

and conditions of employment in the smaller jurisdictions should

be examined in connection with those in some or all of the

Seattle Seven in terms of the statutory standards and guidelines

as a basis for determining the wages, hours and conditions of

employment for the police officers at the Port (Er Br, p 8-91.

 

            B.        THE APPLICATION OF STATUTORY STANDARDS AND GUIDELINES

 

            As the arguments of the parties above reveal, there is no

clear-cut application of the statutory standards and guidelines

in the instant case. One guideline provides that comparison of

wages, hours and working conditions shall be considered among

"like personnel" on the basis of "like employers of similar

size." Although the police officers of the Port have similar

counterparts in many other jurisdictions, none of those

jurisdictions cited by either party as comparables in this

arbitration are "similar employers" in any meaningful sense

except as public entities with police departments.

 

            Also 'size" evades any meaningful measure outside of other

Category x airports and comparable sized marine terminals, and

as Swanson noted, these comparisons are filled with almost

insurmountable difficulties (T III, 46:20 - 4 7 :2 4 ). Population,

geography, and the property tax base are objective standards for

determining size of the police force within city or county

jurisdictions. But the Port has no population base, only

transient passengers, no substantial tax assessment base

specific to its geographic area, and has police officers that

generally perform only some of the duties of those in other

jurisdictions. Port officers seldom, if ever encounter domestic

disturbances, make infrequent citations for speeding, and deal

with relatively fewer major crimes as rape, arson, homicides,

aggravated assault, and similar crimes as their counterparts

else where (E 52 ). Indeed, for the most part, the police

officers are confined to a very small concentrated geographic

location similar to a great extent, to a large shopping mall in

most towns and cities.

 

            The Union offered a straightforward application of the RCW

by relying exclusively upon the alleged past practice of using

the Seattle Seven comparables under the statutory guidelines of

"other factors ... that are normally or traditionally taken into

consideration...." and "stipulations of the parties." This

application is substantially less useful than the Union

contended.

 

            First it ignores the crucial element of 'size" of 'like

employers" as a basic ingredient in relying on past practices of

he parties. Although the Union cited three earlier arbitrators

who refer in one manner or another to the relevance of past

practice of the parties in selecting comparables, the past

practice related to jurisdictions of similar size among "like

employers," as the City of Seattle and Seattle Police Officers

Guild, Kienest, 1984, p 5 re including Tacoma for wage setting

in Seattle (Un Br, p 48). Other referenced arbitration awards

made general statements about consideration of past practices of

the parties as one guideline among several and without

explanation of its application to particular circumstances, a

reference no different than the Port's acknowledgement that

"continuity and stability in labor relations" were desirable.

 

            Clearly here, the Union's reliance upon King County,

Seattle and Tacoma flies in the face of the statutory admonition

to consider "like employers of similar size." By no stretch of

the imagination can one regard any one of these three.

jurisdictions, on the basis of  any concept size, as

comparable and similar to the size of the Port. Under such

circumstances any comparisons with the Port using these

jurisdictions must rely primarily on general labor market

conditions, mobility and turnover of officers, and similar

factors to demonstrate the applicability of RCW 41.56.465

(1) (f).

 

            Although the parties can agree to disregard size and

similarity of jurisdictions, no agreement to do so was reached

in the current negotiations. The Union implied the use of the

Seattle Seven in prior negotiations and the mid term opener in

1998 as a "stipulation" by the parties under the statute (Br

48 ). Such is not the case. The very dispute between the

parties over what constitutes the appropriate list of

comparables is evidence that the parties reached no agreement or

stipulation in the instant arbitration. None is now before the

arbitrator over an agreed exclusive use of the Seattle Seven as

comparables for determining wages, hours and conditions of

employment for police officers at the Port.

 

            One other aspect of the exclusive use of the Seattle Seven

for comparables should be noted. Even though the parties did

use these jurisdictions for comparison purposes in two previous

negotiations, this does not affirm their exclusive use in the

instant circumstance. Upon the expiration of an agreement, one

objective of negotiations is the opportunity to change the terms

of the agreement. The employer has that right as well as a

union.

 

            Inasmuch as the Employer is now dissatisfied with the

comparables used previously, just as the Union is dissatisfied

with certain terms of the Agreement whose improvement may be

supported by Seattle Seven comparisons, the basic considerations

for determining comparables must be reexamined. Of course,

among those considerations are what comparables the parties used

in prior negotiations. But also once the statutory standards and

guidelines are introduced through the appeal to interest

arbitration, the Employer is entitled to contend for and to

apply comparisons from other jurisdictions in addition to or as

replacement for the past practices with the Seattle Seven. And

the interest arbitrator is bound by the statute to give

consideration to those comparables and comparisons that fall

under the standards and guidelines.

 

            C.        SELECTION OF COMPARABLES

 

            I concluded to use the following jurisdictions as the set

of "comparables" for the Port of Seattle:

 

Table 1 - List of Comparables and Departmental Size

 

                              AGENCY                                DEPARTMENT SIZE*

                                                                              (Commissioned Officers)

 

                              Seattle                                                            1244

                              Tacoma                                                 375

                              Bellevue                                               167

                              Everett                                                  177               

                              King County                                         611

 

                              Renton                                                     84

                              Tukwila                                                    69

                              Kent                                                       123  

                              Auburn                                                     72

                              Federal Way                                          101

                 

                              Port of Seattle                                          99

 

                  * Data from E 47 and 48

 

            The parties have used the first six on this list in the

form of the Seattle Seven, which includes the Port. The prior

use of the wages, hours and conditions of employment in these

jurisdictions would justify their inclusion here, consistent

with RCW 41.56.165(1) (f) . The final four represent smaller

jurisdictions and selected specifically for that reason.

 

            As an interest arbitrator I cannot justify the exclusive

use of the Seattle Seven because of the size discrepancies

between those jurisdictions and the Port. Although the size of

police departments, as measured by staffing levels, has not been

traditionally used to determine "similar size" employers, it

represents a reasonable substitute in this instance, given the

general inapplicability of other measures under the statute to

the Port's circumstances as discussed above. It is a measure

not inconsistent with the statute. The standards and guidelines

in the RCW do not specify the manner in which similarly sized

employers will be measured and determined. Although different

sizes of staff may represent differences in officer

responsibilities and duties, any comparisons of crimes handled

by the Port support including the smaller jurisdictions

submitted by the Port and excluding the larger ones in the

Seattle Seven (E 49-52).

 

            Seattle, Tacoma and King County are simply too large, in

very sense, to be examined in any context other than the "labor

market" generally, and not as a comparable directly determined

by RCW 41.56.165(1) (c) (i) . There was no stipulation of the

parties under (1) (b) of the standards and guidelines to ignore

"like employers of similar size" and accept the exclusive use of

the Seattle Seven as comparables. Accordingly under these

circumstances and under the standards and guidelines of the

statute, the arbitrator must give some consideration to the

factor of "similar sized" employers.

 

            The arguments of the Employer concerning the addition of

smaller jurisdictions to the Seattle Seven proved persuasive.

Not only are the four additions of Auburn, Kent, Tukwila and

Federal Way, as well as well as Renton of the Seattle Seven, comparable

in size on a staffing level basis to the Port's Police

Department, these jurisdictions are adjacent to the Port's main

area of activity at SEA TAC (E 48). Although it is equally

true that Seattle and King County are adjacent jurisdictions,

the "neighborhood" effect of these five smaller jurisdictions

manifest itself through various cooperative efforts among them

and the Port, as SWAT, Narcotics Task Force, and similar

activities. Thus on the basis of similar sizes, adjacent

locations and cooperative efforts with the Port, I found the

addition of the smaller jurisdictions to those jurisdiction that

he parties had previously used in negotiations appropriate

under the standards and guidelines of the statute.

 

            Although neither Everett nor Bellevue bore a similar

geographic relationship to the Port as do the Seattle and King

County jurisdictions, I retained those two jurisdictions as

comparables to the Port on the basis of their relative size and

that both had been used in some respect in the 1993 and 1996

negotiations of the parties. The staffing levels of both cities

fall with in a range of 50% to 200% of the Port's staffing

level, a range frequently used in interest arbitrations to

determine similar sized jurisdictions (E Br, p 5).

 

            In the case of the smaller jurisdictions, I dropped

Bremerton, Kirkland and Redmond primarily because none were

adjacent to or near the Port or were working with the Port's

police in any particular program. Clearly Bellevue is a

preferable comparable to any of these because of its closer

proximity to the Port's main activities and because it had been

used previously by the parties.

 

            One final factor requires brief comment. Above, this

arbitrator acknowledged that uncertainty on how a particular

term of the Agreement might be determined arose from an

evaluation of the relative "bargaining strengths" of the

parties. Here, given the nature of negotiations, the issue of

comparables becomes almost a moot subject. As Tessier affirmed,

once certain information was provided the parties, both from the

Seattle Seven and from the eight smaller jurisdictions offered

by the Port, the parties essentially ignored the notion of

comparables, and bargained to make a 'deal" (T IV, 152:18-22;

153:6-12; 159:1-23; 165:4-16).

 

            I concluded that no 'life or death" struggle would have

occurred over whether comparisons from the Seattle Seven or from

the eight smaller jurisdictions offered by the Port, were used

in a non-public open market bargaining situation. Rather a

settlement would have been reached without memorializing what

"comparables" the parties followed expressly in reaching an

agreement on the compensation package, just as occurred in 1993

and 1996. Only because of the arbitration under statutory

standards and guidelines does the issue of comparables represent

a matter of significant difference between the parties. For all

practical purposes, relative bargaining strength on this issue

becomes irrelevant even though not necessarily so on what would

have been the ultimate level of compensation agreed upon by the

parties.

 

            I turn now to the consideration of the specific issues,

utilizing the wages, hours and conditions of employment of the

ten jurisdictions as bases for determining the wages, hours and

conditions of employment for the police officers at the Port.

The ten "comparable" jurisdictions are as follows:

 

      Auburn                        King County

      Bellevue                     Renton

      Everett                        Seattle

      Federal Way               Tacoma

      Kent                            Tukwila.

 

III        BASIC WAGE INCREASE (Item 11).

 

            A.        PROPOSALS

 

            The Union proposed a 5% basic wage increase, effective on

January 1 of years, 2000, 2001 and 2002 .

 

            The Employer proposed a 3% basic wage increase, effective

on January 1 of the years 2000 , 2001, and 2002

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1. Union

            In support of its proposal for a 5% basic wage increase o

January 1, 2000, the Union claimed that the Port officers were

behind the Seattle Seven by 5.2% on basic wage plus longevity (U

64, E 67). Also by a similar analysis of the 1999 salaries, the

Union found that Port officers received 1.2% less than the

average of the Seattle Seven (U 6 5 ). Accordingly, the Union

concluded that a 5% basic salary increase was appropriate and

justified.

 

            The Union was critical of the Port's proposals to make

various comparisons including longevity, education incentives,

pension and the basic wage, as represented by tables in E 68-91.

The Union alleged that most of these were meaningless because

"they bear no relationship to the reality of the bargaining

unit." As an illustration, the Union noted that no one in the

unit has a Master's Degree, and thus those comparisons meant

nothing (E 71). Further no information was available on how

many of the officers would be eligible for any education

incentive. At least one third of them are not eligible since

they have been with the Port too short a time, the Union noted.

further, the longevity analyses were not relevant, the Union

claimed, since nearly half of the force are not "A" officer, a

necessary eligibility for longevity.

 

            The Union objected to the inclusion of health and welfare

contributions in the wage analysis, and claimed that such issues

were dealt with independently in negotiations. Although the

Port claimed a "Cadillac" health plan for officers, no

demonstration was made regarding what other jurisdictions

provided. Similarly on pension contributions, according to the

Union, negotiations were independent of the wage and not

relevant for comparison within the determination of the wage

changes.

 

            The Union relied upon the experience and expertise of

Endressen who alleged, "arbitrators tend to limit compensation

factors so that the parties can conduct a simple analysis" (T

III, 17, 57). Further the Union argued that "interest

arbitrators have rejected efforts by one party to include a wide

range of benefits-such as pension and health and welfare

contributions-as part of a wage comparison" and cited three such

decisions (Un Br, p 53).

 

            Examining other factors, the Union maintained that the 5%

increase in 2000 was reasonable. Here the Union noted the need

to catch up from 1999 where the data show the Port officer some

2% behind comparables. Further the Union noted that the 3%

offer for a basis wage increase from the Port for 2001 would not

cover the increase in the cost of living as shown by a 3.4% in

December 2000 over the preceding year. Endressen claimed, the

Union pointed out that Port officers lost ground relative to the

cost of living during the last collective bargaining agreement,

and some catch up was required here.

 

            Further, the Union pointed to the ability of the Port to

meet the 5% wage increases. It is in a strong financial

position and sited a $64 million dollar surplus in 1999 (U 6 , p

21-25 and U 8 4 ). Also, the Union claimed, based on a survey

made by King County, that the Port paid its employees

substantially better than other jurisdictions (U 59). The Union

reported, also, that Captains and Lieutenants were given first

year increases of 4.75% and 5.75% respectively (E 101). The

Union cited the tremendous growth of the Port over recent years

and alleged that Officers were required to work harder now than

earlier. And finally, the demographics of the police force with

the Port allow the increase. Nearly half of the officers have

less than five years seniority and thus receive no longevity or

education incentive pay. Now is no time for the Port to be

frugal, the Union concluded, and urged that the Department must

remain competitive so that it avoids the difficulties that it

as already experienced with staffing shortages in the early

1990's.

 

            The Union urged adoption of wage increases that would

catch-up with and remain comparable to the Seattle Seven and

outpace inflation over the contract cycle.

 

            2 . Employer

            The Port argued that compensation should be analyzed, not

basic wages alone. In support of this position, the Port

examined the impact of longevity, education incentive and

pension contributions upon the comparative relationship of the

Port to both the Seattle Seven and to eight smaller

jurisdictions, referred to by the Port as the “Comparable

Eight. I‘ Here the Port claimed that the parties had diverted an

unusually large amount of resources to longevity, education

incentive and pension in lieu of wages, and any fair comparisons

would include all of these variables in determining what is a

reasonable basic wage increase each year of the next three.

 

            Through E 68 and 82, the Port alleged that the Port‘s

longevity program pays more than the Seattle Six and the

Comparable Eight at five, ten, fifteen, twenty, and twenty-five

years.  The Port noted that as the police force ages, that at

the higher longevity periods the advantage for the Port officers

increases. A similar pattern exists with the education incentive

as shown in E 69 and E 83 as is generally true for the pension

program of the Port (E 74 and 87). Although how the varies

jurisdictions handle social security, supplements and pension

contributions directly vary somewhat among the 14 jurisdictions,

the Port alleged that Port officers receive a substantially

better overall pension program than do officers in the other

jurisdictions.

 

            The Port went on to note that the Union had agreed in the

mid term opener in 1998 to consider all of the elements of

compensation in determining whether further wage adjustments

were necessary (T I, 162:24 - 163:3; Appendix R, U 1).

Further, the Port's analysis takes into consideration several

points of comparison rather than only one as the Union did. The

Port argued that no one correct point exists, but that it is

better to examine from several points of view in order to get a

full understanding of the relationships of various elements of

compensation in comparison across the comparables.

 

            Looking at the data per se, the Port found that the Port

officers were doing as well and better than the comparables.

Per E 90A, the data indicate that the Port officers are anywhere

from 2.9% to 5.1% ahead of the Seattle Six at each point of

comparison. With the Comparable Eight, the difference increases

from 3.5% to 8.4%. In these comparisons the Port included

pension, longevity and education incentives. In a table in its

brief, the Port shows the range of differences for some 30

comparisons of combinations of basic wage, education incentive,

longevity, and pension contributions (Er Br, p 13). From all of

these data, it is clear that no catch-up is required, the Port

concluded.

 

            The Port presented the wage increases bargained among

comparables that it used. Although some variation exists,

among the Settle Six, the average wage increase for 2000 was

3.1%. The negotiated increases for the Comparable Eight was

exactly 3.0% per E 93.

 

            The Port relied upon several other sets of data to support

its proposal of 3% each year in basic wage increase. First, the

increase in the cost of living, as measured by the US CPI-U. was

2.6% in 1999 and 3.4% in 2000. The Port’s offer of 6.0% for the

two years of 2000 and 2001 matches the corresponding increases

in the cost of living. Second any reliance upon the Seattle CPI

introduces volatility in the figures, represent seasonally

unadjusted data, and by reason of the small sample of prices and

quantities in a metropolitan area makes those data unreliable.

The Port noted also that the Implicit Price Deflator was even

lower than the CPI data (E 140).

 

            Second, the Port contended that a relevant factor was

maintenance of internal equity. Here the Port cited the

agreements with other Unions with which it had completed

negotiations. Among the 14 units, the average wage increase for

2000 was 3.1%, according to the Port (E 100-101).

 

            Third, the Port pointed to the ‘Cadillac health care“ plan

as an advantage for Port officers over officers in the

comparables, either the Settle Six or Comparable Eight. Its

premium went up 8.8% in 2000 and 14.1% this year and represented

.75% increase in compensation for the officers (E 97).

 

            Four, the Port contended that the compensation package of

the Port officers was competitive with and superior to those of

the comparables. Over the last several years, ‘job satisfaction

has been ’very high’,“ according to Deputy Chief Kimsey (T VI,

144:7-17). No one left the Department in 2000 and only one

officer resigned in 1999, to return to college. Only four

officers have left since 1995, and only three went to other

police jurisdictions. Clearly there is little turnover, a good

indication that the compensation and benefits of the Port meet

the competition, the Port concluded.

 

            Finally, the Port argued that the methodology of the Union

in support of its basic wage increases was seriously flawed.

The Port found the King County findings on wages and salaries in

its “Classification/Compensation Project“ to be unreliable and

not based on any statutory or factual basis for use of the

jurisdictions of the study in this proceeding. The Union had

based a 12% increase in wages upon this study. Also, the Port

alleged that the Union’s methods on wage comparisons were

specious, dependent upon a “best case” illustration for the

officers, and otherwise defective from improper comparisons of

compensation elements among comparables. In addition, the Port

maintained that the Union’s concern over staffing levels was

irrelevant and beside the point here as regards wage and

benefits levels.

 

            The Union improperly used the maximums of the ranges

reported by various entities surveyed by King County without

recognizing that ranges vary and without knowledge of whether

employees were actually hired at that maximum a fictitious and

unreliable figure resulted. The Union made no attempt, nor did

the authors of the study to determine if the contents of jobs

reported by various entities were correct or were similar for

specific classifications. In fact, the Port pointed out that

the authors of the study disclaim “the accuracy of the job

matches for salary comparison purposes“ yet the Union persisted

in used the data. The Port offered several examples in brief on

the unreliability of the data from the testimony of Officer

Salios to reach the conclusion further that the arbitrator

should ignore this information (Er Br, p 21-23).

 

            The Port argued that the methodology of the Union was

fraught with problems. Not only did the Union ignore the mutual

agreement reached in the prior bargaining agreement to compare

all elements of compensation when making comparisons, but also

no explanation was given on why only wages and longevity alone

were used, except that it was the "best case" for the Union.

The use of 21-year veterans for longevity and wage comparisons

was based on a 1996 survey and thus ignored that the average

seniority (longevity) in the Department is less than 10 years in

2000 (E 43-44). Further had the Union used a 22 year employee,

that employee would have received an extra 2% for longevity over

the 21 year employee and would have completely eliminated any

claim of the Union of a needed 2% catch-up in wages, the Port

pointed out.

 

            Further the Union included certain premiums in some

jurisdictions that were not received by all employees and in

other cases excluded such items as education incentives solely

because all officers do not receive such a premium, the Port

alleged. Similarly in U 65, in a broader analysis, pension and

education incentives were excluded, but take home cars were

included, without explanation.

 

            Finally, the Port pointed out that in 1999 the Union made

an analysis of the compensation packages across the Seattle Six

and found no need to reopen the wage bargaining under the mid

term re-opener for any catch-up by the Port officers (T   I,

162:10-15). Since the Port's offer now is nearly exactly what

the average increase obtained by the Seattle Six for 2000, the

Port concluded no catch up was required.

 

            The Port contended that the "testimony (of Captain

Wilkenson) (was) entirely irrelevant to the economic analysis

that (this) Arbiter must engage in" since the issue of staffing

has become passe'. Although some basis may have existed to go

over the extended history of staffing at the Port, the level of

staffing has increased from 75 to 99 between 1997 and April 2001

and any claim of under staffing and overworking officers cannot

be sustained, the Port asserted (E 45). Nor can the Union rely

upon staffing levels at other airports. These comparisons

stumble over differing physical layouts of airports,

combinations of police officers and firefighters on some staffs

and the use of noncommissioned personnel for traffic control in

several locations. The Union exhibits are misleading by reason

of mixing commissioned officers with civilian or non-

commissioned personnel (U 36, n 6 ).

 

            Finally on this point the Port maintained that SEA TAC and

surrounding Port property were safe. Examining crime statistics,

the Port concluded that over the last twenty years, although

numbers of passengers through the airport has tripled, the

number of crimes reported to the FBI has not increased (E 66A).

No correlation exists between crime and passengers that would

justify further staffing or higher wages, the Port concluded.

‘Simply stated, there is nothing in all of the staffing

“evidence“ offered by the Union that would support in any way an

additional wage increase for Port police offices over and above

that consistent with local market conditions, internal

comparability and changes in the Consumer Price Index“ (Er Br, p

30).

 

            C.        ANALYSES OF THE DATA ON WAGES

 

            1. The Compensation Package

            Some differences exist between the parties over the

composition of compensation data that are to be compared across

the comparables. The Union argued f o r a single “representative“

mixture -of only the basis wage rate and longevity for 21-year

employees. On the other hand, the Employer data consisted of a

series of comparisons involving several elements of the

compensation package as longevity, education incentive, and

pension for employees with different education degrees and

varying lengths of seniority.

 

            Since the objective of the interest arbitration is to

approximate what most likely would result in an unrestricted and

free labor market, ideally the comparisons would be made on all

elements of a compensation package, broadly interpreted to mean

what ever a prospective employee would take into account in

selecting one employer's offer of employment over another.

These elements should be weighted by the number of employees of

a particular employer who were then employed in each box of the

matrix that results from listing each element of the

compensation package. This measures the relevance of each

element directly and avoids such problems as the Union pointed

out about the use of the MA incentive for the Port, for there

are no officers to receive that compensation element (Un Br, p

52; E 71). But obtaining weighted compensation packages from

each of the comparables is an insurmountable problem here, and

less meaningful comparisons must be made. In effect what is

done is to compare where the officers are in the Port with the

"schedule" of wages and compensation elements at each of the

other jurisdictions, including as many elements in the single

comparison as can reasonably be manipulated in a straightforward

and meaningful way. Indeed the comparison across comparables

may be confined, in some instances to consideration only of the

'schedule" of compensation elements between the two entities

without regard to what the employees actually receive in either

jurisdiction.

 

            Thus any single element can give only a partial picture for

comparison of compensation, although the basic wage rate may

well constitute the most relevant and most import element in the

entire compensation package. But the Employer was correct to

insist that the basic wage should be adjusted for longevity,

education incentives, pensions and a consideration of relative

levels of health and welfare benefits noted as well in relation

to relative wages among the comparables (Er Br, p 9-14; 18-19).

This comes closer to the ‘ideal“ than a single comparison of the

wage of a 21-year employee across several employers, as the

Union proposed (U 64, 65) . Examining compensation at different

levels of longevity or education incentive eligibility provides

added information on the relationship of one comparable to

another, and allows for comparisons of the “structure” of

compensation and not alone a single element as the basic wage.

 

            Finally the Employer was correct to point out that trade

offs are made among elements of compensation, and especially in

collective bargaining. The recent bargain at Tacoma illustrates

this fact. The employer traded a 2% across the board wage

increase for the education incentive (E 92). Some employee

groups and their employers/unions choose to accept large pension

contributions and or better health plans and lower wages

relative to another group who choose to take the income now in

higher wages rather than as deferred income in pensions later or

better health services. Thus an examination of a single element

of compensation at a time distorts the true employee

compensation relationship among the groups. Accordingly as

large a complex of compensation elements as possible that can be

put together provides a more valid compensation comparison

across the compared jurisdictions than single element

comparisons.

 

            2.  A “Catch-up“ in Wages

            I concluded that insufficient evidence supported the need

for a “catch-up“ in the basic wage rate of the Port Officers for

year 2000. A "catch up" is demonstrated neither by

comparisons of base rates alone in 1999 across the comparables

nor by 2000 basic wages when adjusted for other elements of

compensation.

 

            I have reconstructed U 65 to eliminate the special payments

included in the base rates for 1999, as the 1.5% premium for

patrol for Seattle and King County, the 1% LEOFF II and shift

premiums for Tacoma, and 5.24% premium for shift schedule in

Renton, and added base rates for Auburn, Federal Way, Kent and

Tukwila. The results are as follows:

 

            Table  2 - Base Wage and 21 years Longevity, 1999

 

            Agency                        1999 Base                   Longevity

                                                                                    (21 years)

 

Seattle                                    $4541.00                     12%    $54.50

Tacoma                         4329.00                        8         34.63

Renton                          4183.00                        7         29.28

King Cty                       4264.00                     10         42.64

Bellevue                       4270.00                        6         25.62

 

Everett                          4217.00                        9         37.95

Auburn                          4139.00                        8         33.11

Federal Way                 4339.00                        4         17.35

Kent                              4388.00                        5         21.94

Tukwila                         4256.00                        0            0.00

 

Average                        4303.00                        6.9       29.20

 

            Port of Sea                  $4314.00                         9       $38.82

 

            As is readily apparent by comparing the averages of either

the base rate or the additional pay from longevity, that the

ort officers were equal to or well ahead of officers in the ten

comparables. Nor would this comparison differ if only the

Seattle Six were considered. The average monthly base wage

remained essentially unchanged, and the Port officer fares

slightly better on longevity than the officer in the other six

jurisdictions.

 

            As the Employer in its brief, had the Union

relied upon 22 years of longevity rather than only 21, the

longevity pay for Port officers would be 2% higher than for

other jurisdictions and any claimed deficiency between the Port

officers' base pay and seniority in U 65 would have been

completely eliminated (Er Br, p 25). No need for a "catch-up"

in wages was indicated here.

 

An examination of base wage rates and longevity for the ten

comparables confirms also that no catch-up is necessary in 2000

above the proposed 3% increase of the Port. The following table

sets out the 2000 base rates with five, 10 and 20 years

longevity data:

 

            Table 3 -Base Rates and Longevity by 5, 10 and 20 years, 2000

 

            AGENCY                    2000                                        Longevity

 

                                                Base Rate      5 years            10 years          20 years

 

            Auburn                        $4270 $4355 $4457 $4612

Bellevue                                   4496   4496   4496   4766

Everett                                      4552                4643                4711                4962

Federal Way                             4456   4501   4545   4634

Kent                                          4528   4619   4664   4754

 

King County                             4420                4455   4632                4774

Renton                                      4525                4615   4706   4978

Seattle                                      4702                4796   4984   5266

Tacoma                                     4548                4637   4724   4910

Tukwila                                     4375                4375                4375   4375

 

Average                                  $4487 $4549 $4630 $4803

Port of Sea                              $4314 $4400 $4530 $4702

   (1999)

 

Difference-$                               173                  149                  100                  101

                                             % (4.01)               (3.39)               (2.21)               (2.15)

 

            The mean seniority of the Port officers, as computed from E

43 and 44 is almost exactly 10 years. On that basis, a 3% wage

increase would put the Port officer above the average by nearly

one percent, clearly no basis for a "catch-up," or any wage

increase above the Port's offer. Or looking at that half of the

officers at the Port who have five years or less of seniority,

the sum of the base rate and 5 year figures together would

suggest a 3.7% wage increase (4.01 + 3.39 : 2). On the other

hand the remaining half of the force lies at the 10 years

longevity and above, and their wage rates support only a 2.18%

increase to reach the average of the comparables in 2000.

Combining the two groups provide no basis for a ''catch-up" and

supports no more than a 3% general wage increase for 2000 for

Port officers.

 

3. The Wage Increase for 2000

a. Supplemental Compensation Elements. As the data in

Table 2 above suggest, a 3% basic wage increase for 2000 would

e appropriate and consistent with the rates paid among the ten

comparable jurisdictions. But the argument above also indicated

that wages might be offset by other elements of compensation.

Here however, the immediate data on other generally received

compensation elements suggest just the opposite. The Port

officers are much better off, on the average, than officers in

the comparable jurisdictions when pension contributions and

education incentive pay are added to the base rate at five, 10

or 20 years of longevity. I have computed the percentage by

which the Port officers exceed the average of ten comparables,

given a three percent general wage increase. I have relied

upon the data in E 75, 77, 79, 89, 90, and 91 with random

verification of the Employer's computations by comparison with

other tables and recourse to the raw data in the appropriate

collective bargaining agreement. The results were as follows:

 

            Table 4 - Percentage Excess of Port Wages over Average of

                        Ten Comparables, Given a 3% Basic Wage Increase, by

Longevity, Pension and Education Incentives, 2000

 

Longevity

 

Pay Element           Five Year                   Ten Year                   Twenty Year

Longevity +

pension                       3.2%                           4.3%                           4.6%

Longevity +

Pension +

AA+ Degree               3.6%                           4.9%                           5.4%

 

Longevity +

Pension +

BA Degree                 4.0%                          5 .5 %                         6.2%

 

            Clearly, the comparable wage rate at the Port was not

offset by much lower compensation from pension contributions and

an education incentive pay for Port officers relative to their

counterparts among the ten comparables. Rather, the Port

officers are relatively better off, in comparison to the average

compensation among the comparables with regard to these

combinations of compensation elements. The 3% basic wage offer

of the Port is fully supported and, given the excess percentages

by which Port salaries exceed the average of the comparables, a

generous offer.

 

            I concur also with the Employer with regard to the

consideration of health and welfare benefits in addition to

wages. Some groups of employees do choose to take extra

benefits in health services rather than in wages, since it has

both a tax advantage for the employee as well as a cheaper cost

for a given package of health benefits when purchased for a

group by the employer. The Health Plan cost for the Port equals

9.5% and 10.5% of the monthly basic wage  in 2000 and 2001,

respectively (computed from E 96, 97 and 67).

 

            But here again, no basis exists to consider the wages of

the Port officers out of line because the health plan benefits

provided by the Port are minimal. The health plan benefits

package, provided at no cost to the employee by the Port, is

equal to, if the plan does not exceed what is provided among the

comparables. No great detail was provided regarding what health

plans other jurisdictions have. However, the "Cadillac" plan of

the Teamsters would be difficult to improve upon, and difference

between plans of other jurisdictions that might be better than

the Port's officer health plan, and the Port's plan would be

insignificant and unable to justify any additional wage increase

above the 3% proposed by the Port to compensate for a less

extensive health plan.

 

            The Union raised an issue regarding the inclusion of

pension contributions, specifically social security payments by

the employer, and or health and welfare benefits in the

compensation comparisons, and cited the decisions of other

interest arbitrators to ignore or set aside the consideration of

these items. The basic claim was that these payments by the

employer did not represent direct compensation paid to

employees, or that such benefits had widely differing values to

individual employees.

 

            The objection to including these benefits because different

employees may value them differently mischaracterizes the

comparisons called for in the statute. The argument pertains to

variations in intrinsic value of say health benefits among

individual workers for a given employer. But all employees of

that employer do produce a consensus of what shall be obtained,

i.e., for each employer some common value has been attached to

the benefits package.

 

            Here the comparisons are among similar e employers where in

each case the employees of each employer have reached a

consensus represented by the cost of a particular package of

benefits. The appropriate comparison is not unlike comparing

the mean values of two separate and different Bell curves where

each curve represents the variations in individual values of the

benefits among workers of each employer. The analysis cited by

the Union at page 53 of its brief erroneously mistakes the

values along the single curve of a single employer as the basis

for comparisons among similar employers for the needed

comparisons of mean values of each employer's curve across

several employers.

 

            Nor do I find the reasoning of the Union regarding the

exclusion of social security payments by the employer to be

reasonable or proper. Pension and social security contributions

are deferred income, and in the case of social security can be

paid only to the individual employee or his estate. Because

social security payments are made to a government retirement

plan, as Social Security, rather than a private one, as the

Teamsters Pacific Coast Benefits Trust, provides no reasonable

basis upon which to exclude this element of compensation (Un Br,

p 54 - Decisions cited). Further, in as much as some of the

comparables in this case pay to private plans and other to

social security, exclusion of one category of retirement benefit

would distort the compensation packages, and in this case make

the compensation package of the Port officers relative to the

comparables even more advantageous. Just as I am unwilling to

overlook the $475 per month per officer pension contribution by

the Port--some 10.4% of a basic wage rate of 3% more than

received in 1999-- neither is it either economically correct nor

air to ignore the payment of 6.75 percent of wages in social

security by several of the comparables (E 74, 87, 88).

 

            b.         Additional Factors in Determining Wage Increases.

                        (1). Cost of Living. Changes in the cost of living as

measured by the Consumer Price Index fail to justify any basic

wage increase beyond 3%. The annual rise in the US CPI-U from

November 98 to November 99 was 2.6% and for the similar period

in 2000 was 3.4% (E 109 and 110). However the latest data

(August 21, 2001) show an annual increase in the CPI U of 2.7%

(Internet: BLS) . The latest data on the Implicit Price

Deflator, although not precisely a cost of living measure, was

at 2.61% (E 139). Thus a 3 % increase in wages in each year

would readily meet changes in the cost of living. Nor is there

much likelihood that a sudden burst of inflation will occur in

the near future with unemployment now the highest that it has

been in several years. Inflation is unlikely to occur in an

economy that is even only mildly depressed, as seems to be the

state of affairs at this time.

 

            The Union argued for use of the Seattle Metropolitan

Consumer Price Index. It shows an increase of 3.0%, 4.1% and

4.0% for the periods shown above for the US CPI-U. On this

basis the Union argued for a higher than 3% annual wage increase

to match the loss in purchasing power implied by these figures.

The Port's proposed annual increases in wages have been less

than the cumulative total of 11.1% for changes in the Seattle

CPI-U.

 

            I have set this argument aside for two major reasons.

First, metropolitan indexes are volatile and subject to random

errors and inaccuracies. The sample base is small and not

subject to seasonal adjustments. Because of these reasons, the

Bureau of Labor Statistics recommends that the index not be used

for wage adjustment purposes as proposed here by the Union.

 

            Second, the parties relied upon the US CPI-U in the

expiring Agreement. The Union offered no compelling reason why

a change would now be made, given the above considerations

regarding the Seattle CPI-U.

 

            The changes in the cost of living fit the proposal of the

Port more closely than does the proposal of the Union.

 

            (2) Other Bargained Wage Settlements by the Port.

            Other union negotiated wage settlements at the Port for 2000 are

comparable to its proposal here. From E 100 and 101, I have

computed the “weighted” percentage wage settlement among the 15

contracts reported in that exhibit. The weights were the number

of employees in each bargaining unit as reported at the hearing.

Thus the 4.1% settlement of the Engineers involving 66 employees

was weighted over four times as much as the 3.2% settlement for

the I.D. Access group of only 14 employees, represented by the

Teamsters. The result was that among 595 employees to whom

these settlements applied, the weighted average wage increase

for 2000 was 3.1%. On the basis of internal equity, the Port‘s

proposal of a 3% increase in 2000 is more reasonable than the 5%

proposed by the Union.

 

            Several reasons exist to consider other union wage

settlements that the Port has made for 2000. Although these

settlements undoubtedly were affected by their own particular

circumstances, the Employer has a reasonable basis to insist

upon consistency and internal equity among employee groups.

Certainly the Union would wish to do as well as others in

negotiating with the Employer. And undoubtedly references

occurred during bargaining about the progress of and settlements

reached by the Employer and other Unions. Under these

circumstances, the consideration of in house settlements is

readily justified under the statute as one of those factors

“normally and traditionally taken into consideration in the

determination of wages, hours, and conditions of employment.”

 

            Other Port wage settlements with other bargaining units,

under the principle of maintaining consistency and internal

equity among employee groups, supports the 3% wage increase

offer to the Police officers by the Port for the year 2000.

 

            (3). Wage Settlements Among the Comparables. Although

much of the discussion above has been concerned with the actual

level of compensation among the comparables, another measure of

wage change is the percentage change negotiated year to year.

Although in an unrestricted market some tendency for wage levels

of various employers to gravitate to the average would likely

occur, at the same time some Employers chose to be "high wage"

employers, and other to be "low wage" employers. In these

circumstances, the somewhat better trained and experienced

individuals tend to go to the high wage employer and thus a

structure of wage levels becomes established in the labor

market. Many unions attempt then, under these circumstances and

as a minimum effort, to keep in step with the market wage

structure, and seek annual wage changes that will keep its

bargaining unit members at least in the same relationship to

other groups as existed in prior years. Employers will seek to

keep the same or possibly lower position relative to other

employers. Thus on this basis consideration of the percentage

changes negotiated by each similar employer becomes relevant in

determining a wage increases for the Port officers.

 

            In Table 4, the known negotiated wage changes for 2000,

2001 and 2002 are set forth:

 

Table 5 - Negotiated Percentage Changes in Basic

Wage Rates, by Year for Ten Comparable Jurisdictions

 

                                                                                   YEAR

                AGENCY                2000                            2001                            2002

 

            Auburn                        3.0%                           4.0%*

            Bellevue                     2.7

            Everett                        2.8

            Federal Way               2.8                               3.5                  

            Kent                            3.2                               3.9

           

            King County               3.6                               3.5                               3.5

            Renton                        3.0                               3.0                               3.0

            Seattle                                    3.5                               3.5                               3.5

            Tacoma                       3.0**                          

            Tukwila                       2.8                               3.4

 

            Average Increase      3.0                               3.5

 

            Other Port EES          3.1

 

            Us CpI-U***              2.6                                3.4                              2.7

 

            * Jan 1 - 3.5%;           July 1 - 1.0%

            ** Plus 2% buy out of Education Incentive Pay

            *** November to November, except 2002 is July to July

 

            The average basic wage increase negotiated for the year

2000 among the ten comparables is within a fraction of a

percentage point exactly 3%. This datum supports the amount of

the Port's offer and proves unpersuasive for a basic wage

increase of 5%.

 

            The negotiated wage increases for the following two years

are somewhat higher. I return to a consideration of these data

below

 

            (4 ). Employee Turnover. One measure of a deficiency

in compensation is the departure of employees for "greener

pastures .'I If an employer has failed to keep up with the

market, employees do leave for higher paying and preferable

positions elsewhere.

 

            No evidence in the departure and turnover of police

officers at the Port support any large increase in compensation

and benefits. In 2000 no officers left the bargaining unit and

only one in 1999 who quit to return to college, not exactly an

indication that the compensation conditions at the Port were

depressed and undesirable. Furthermore, in the preceding four

years, 1995 through 1998, four employees left, only three of who

went to other police departments. Overall, the conclusion is

unmistakable, the conditions of compensation and other benefits

of the Port are strong enough that employees wish to remain in

the Port’s employ.

 

            In addition, according to Sergeant Monohan a shortage of

police officers exists and other departments “are competing very

strongly for candidates” (T I, 187:1-3). Although this

situation may cut both ways in that on one hand its difficult to

recruit new officers, certainly in a shortage market. If, on

the other hand the Port compensation package did not meet the

competition and a little better, some employees would be

resigning and taking positions in other departments. But such

is not the case here. The fact of so little turnover is a

strong indication that the compensation package and conditions

of employment at the Port are adequate and fair. Further the

recruitment of a third of the staff in the last four years

supports also that the compensation package is competitive and

adequate.

 

            C.        Union Arguments in Support of a 5% Basic Wage Increase.

 

            In addition to the weight of the analysis of wage data

above that lends little support to the Union proposal of a %5

increase in the basic wage rate in each of three years of the

contract, I was not persuaded also by arguments made directly in

support of the Union‘s proposal..

 

            (1). King County Study.  Data and information presented

from the King County Classification/Compensation Project was of

little or no value in determining basic wage rates for the Port

officers, notwithstanding that the Union claimed Port employees

were paid over 12% more than employees were paid in several

other local government jurisdictions.

 

            The King County Study was a classification study. Its

objective is the establishment of ranges for job

classifications, not the wages of individuals. Aside from an

attempt to use the study for a purpose for which it was not

designed, numerous deficiencies and defects exist in the study,

not the least of which was that several of the employer

jurisdictions involved in the study could not meet the standards

and guidelines required by the statute for examining wages and

conditions of “like employers“ to the Port. I do not intend to

set forth these here in as much as most of the Study‘s

shortcomings were developed in sufficient detail in the cross-

examination of Officer Solois (T IV, 113 - 125; 128 - 130). I

note only that the authors of the study affirm on page 2 of 50

“The Classification/Compensation Project staff does not verify

the accuracy of the job matches for salary comparison purposes”

(E 237). This should have been sufficient to discourage further

examination of this document for the purpose of determining

basic wage levels for police officers at the Port.

 

            (2) Staffing Levels and Overworked Officers. Second

the Union cited the substantial growth in passenger traffic at

both the airport and the sea terminal to allege that officers

now work harder than previously. Not irrelevant to this

contention was the tremendous amount of overtime worked by the

officers . Although acknowledging that the overtime was paid

for by the Port and substantially enhanced the incomes of Police

employees, the Union expressed concern over the need for

additional staff so as to avoid the pitfalls of understaffing

during the early 1990's.

 

            Although a great deal of time was spent on the need for

adequate staffing, I found no central thesis on what should be

the staff level and why that level vis a vis the one that now

exists. I did note that the Port has increased the number of

commissioned officers in the Department by nearly one-third as

well as replace senior employees who retired in the last three

or four years, and was continuing to seek new hires to keep the

complement at full strength. These circumstances left me

unconvinced that the situation merited Special consideration as

a factor to justify a 5% across the board increase in basic

wages for the Port officers in each of the three years of the

proposed new agreement.

 

            (3). Ability to Pay.      A final contention of the Union

for a 5% basic wage increase rested on the claim that the excess

of income over expenditures of the Port that resulted in a $64

million surplus in 1999 could be used, in part, for that

purpose. Also the Union pointed out that the average salary

cost per officer has dropped in recent years as the average

longevity of the bargaining unit members fell substantially with

retirements and then new hires. These circumstances provide no

reason for the Port to be "frugal" in its approach to wage

increase, the Union argued, and urged the 5% wage increase on

this apparent ability to pay by the Port (Un Br, p 52-53).

 

            I've set aside this contention for several reasons.

Surplus and or "profits" represent compensation for the capital

involved. Even though no "stockholders," per se, are present to

receive the surplus of the Port as a public entity, it is not

altogether clear employees, by higher wages, are entitled to any

anticipated or required distribution of that or future surpluses

any more taxpayers, by lower taxes, r customers of the

ort, by lower charges.

 

            The use of savings in salaries from a more junior workforce

than in earlier years as a basis for and a source of funds for

wage increases now is not a persuasive argument. The logical

implication of this suggestion is that by providing greater

increases now on salaries, when the bargaining unit members

achieved some greater longevity, the Union would be willing to

reduce the amount of wage increases because the average cost of

salaries to the Port had gone up. This is an ingenious

contention but not convincing for a 5% salary increase now.

 

            d. Conclusion on 2000 Wage Increase.   I concluded that the

preponderance of data and arguments thereon supported the Port’s

offer of 3% basic wage increase for 2000. No catch-up in wages

from prior years was required. Supplemental compensation

elements as pension, health and welfare, longevity and education

incentives made the circumstances of the Port officer even more

advantageous relative to salary levels among the comparables.

In addition, cost of living data, other settlements by the Port

with other unions, and the pattern of settlements among the

comparables supported the Port’s 3% offer rather than the 5%

proposal of the Union. Finally, the affirmative contentions of

the Union for a 5% basic wage increase were not persuasive.

I shall direct the parties to incorporate in the new

agreement a basic wage increase of 3%, effective January 1,

2000.

 

            4. Wage Increases for 2001 and 2002

            The parties provided very little data or argument over what

should be the basic wage increase in the last two years of the

contract. The settlements reported in Table 5 above suggest an

41.increase of 3.5% on the basis of eight settlement 5 among the ten

comparables. Other information was the cost of living changes

in 2000 and 2001, and its pessimistic or optimistic forecast for

falling or increasing more in 2001. Some reference was made to

anticipated changes in the economy generally, but without much

available other than speculation.

 

            I have concluded to hold the basic wage increase for the

years 2001 and 2002 at 3% each year. I based this conclusion on

the following considerations.

 

            First, the known settlements of the same three years as

proposed in this contract, on average, have only marginally

exceeded the 3%, i.e., 3 .3 %. The other settlements among the

comparables for 2000 were the end of other contracts and do no

represent current thinking and settlements on wage changes, and

on that account should be given less consideration.

 

            Second, although some increase in the US CPI-U for 2000

would suggest slightly greater than 3%, the trend clearly has

been reversed in 2001 such that over the two years an increase

in wages of 3% each year would maintain purchasing power for the

officers . In addition, although forecasting is somewhat

speculative and uncertain on accuracy, the current continued

lowering of the interest rate by the Federal Reserve affirms no

inflationary pressures are at work in the economy. Further, the

unemployment rate, reported in mid August by the Department of

Labor, was the highest in nine years, hardly a harbinger of a

booming economy and inflationary pressures to justify a larger

wage increase to avoid declining purchasing power as prices

rise. From an economic point of view, a declining and at best a

stagnant investment and stock market further indicate no great

chance that prices will run up sufficiently to justify any thing

above the 3%.

 

            Third, and most important, the extent to which the

compensation package of the Port officers exceeds the average of

the ten comparables, as shown in Table 4, provides substantial

support for denying a salary increase in excess of 3% on the

basic wage rate. Even the five year officer receives 3.2% to a

4.0% more salary than his counterparts elsewhere, even after a

3% wage increase in 2000. Officers with greater longevity enjoy

even greater advantage over the others in the ten comparable

jurisdictions. When these data are combined with the "Cadillac"

health plan of the Port, the case becomes even stronger for only

a 3% increase in base salaries each year over the next two

years, as the Port has offered.

 

            Thus I shall direct the parties below to provide for basis

wage increases of 3% on January 1 of each 2001 and 2002.

 

            D.      DECISION AND AWARD: BASIC WAGE RATE INCREASES (Item 11)

 

            I decided and award that Appendix A, PAY RATES be competed

at Section 1 as follows:

 

            A.        Effective January 1, 2000, increase the 1999 basic wage

                        rates by 3%.

 

            B.        Effective January 1, 2001, increase the 2000 basic wage

                        rates by 3%.

 

            C.        Effective January 1, 2002, increase the 2001 basic wage

                        rates by 3%.

 

IV.       EDUCATIONAL INCENTIVE ELIGIBILITY. (Item 21).

 

            A.        PROPOSALS OF THE PARTIES

 

            The Union proposes that the educational incentive be

available to officers upon the completion of probation.

 

            The Port proposes to leave the eligibility conditions as in

the current Agreement, available only to the Police Officer "A"

classification.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1. Union.

            The Union pointed out that no good reason exists for the

      current eligibility rule for the officer to await "A"

      classification, generally 5 years service unless a lateral

      transfer new hire with experience. Since the Port recognizes

      that education has a benefit to the employer, that benefit

      accrues upon the arrival of the officer. Delaying until

      probation is completed, as proposed by the Union, allows

      acquisition of experience with the Port to complement the

      educational achievements.

 

            Second, a majority of the comparable jurisdictions (Seattle

Six) offer the educational incentive at completion of probation

or earlier in the service career of the officer than is done by

the Port. Bellevue, Renton and Everett offer full educational

incentive at the completion of probation (T VI:52-53). None

among the Seattle Six who have an educational incentive offers

t as late in the career of the officer as does the Port.

 

            Third, the educational incentive is needed for recruitment

purposes, as was illustrated by the testimony of Officer

Minnehan (T III, 189). The failure to match the educational

incentive of other near by jurisdictions risks the loss of many

of the younger officer only recently recruited, and intensifies the

difficulty of recruiting additional staff, the Union

claimed.

 

            Fourth, the Union pointed out that the absence of the

educational incentive among the younger staff creates a

substantial differential in pay between them and those with

longevity in excess of 5 years. Since the Port is saving on the

cost per officer with the high proportion of new recruits in the

last three years, no reason exists for the Employer not to lower

he educational incentive eligibility levels to that proposed by

the Union.

 

            2.  Employer

            The Employer contended that a comparison of the Port's

education incentive plan with those offered in other

jurisdictions makes clear that the Port's plan is a good one.

Because the Port has an excellent longevity plan, the current

addition of education incentive makes the Port's situation even

that more attractive to employees. Many jurisdictions have

longevity or educational incentive programs but not both as

Seattle and Bellevue.

 

            The testimony of Officer Minnehan that the Union advanced,

left the situation confusing. Although alleging certain

benefits were offered to the Department by education, Officer

Minnehan was unable to identify what jurisdictions had incentive

programs for education and those, that did not. Her testimony

made clear that the Port's programs were sufficient to attract

new hires, and would not lead to a loss of personnel.

 

            The Port emphasized that it took about five years to train

an officer adequately, and cited the testimony of Sergeant

Klineberger to this effect (T 11, 108:1-14). This represents

the threshold, according to the Port, that the parties have

relied upon for an officer to be eligible for the educational

incentive, and the it to receive the longevity

premium. Some officers transfer laterally into the department,

generally come in at a higher level and do not have to wait for

the five years for either.

 

            Noting that some jurisdictions provide the education

premium immediately upon completion of probation and that other

provide it after some period of years, as King County and Kent,

the Port concluded that its position was secure since it has had

no difficulty in recruiting new police officers, and recent

hires have not been leaving the Department. The Port concluded

that the status quo in the Agreement with regard to the

educational incentive should be retained.

 

            C.        ANALYSIS

 

            I concluded that some adjustments should be made to the

eligibility conditions for receipt of the educational incentive

premium. Several reasons support changes in the direction of

the Union's proposal.

 

            First, the Union's argument has substantial validity that

benefits of education accrue upon the beginning of employment

and not some several years later. I do recognize, however, that

the value of education may well be enhanced by experience but

that does not eliminate the benefits of an education without

experience. Employment applications for many employers specify

that years of education may be substituted for years of

experience and visa versa in meeting qualifications for job

opportunities. I could find no reason why this principle would

not hold for police officers, as well, once probation had been

successfully completed.

 

            Second, the majority of the ten comparables (Auburn,

Bellevue, Everett, Federal Way, Renton and King County) provide

for educational incentive pay earlier in the careers of police

officers than do the Port. Alt h this is not an

overwhelming circumstance vis a vis the Port, the data lean

toward the Union's proposal.

 

            Third, the one group among the Port officers that currently

is farthest behind in compensation relative to its similar group

among the comparables are the new hires and those with less than

5 years longevity. This can be seen clearly in Table 3 where

the base rate and those with only five years longevity are

farther behind the average of those groups among the comparables

than is the case for other longevity groups at the Port.

Accordingly, providing for the educational incentive to apply

after probation would tend to equalize the compensation of new

hires at the Port relative to new officers elsewhere.

 

            Finally, although both education and experience contribute

to the value of an employee, to some extent these measures of

greater value and increased productivity overlap. Clearly the

addition of many years of seniority tends to diminish the value

of a college education as skills and expertise, specific to a

particular classification or profession are acquired by on the

job experiences. At high levels of longevity, with individuals

of equal capacities and competence, any differences in

performance between the one with a college education and the one

without may be difficult if not impossible to determine.

Accordingly, I shall propose below that the educational

incentives now a part of the Agreement be applied to all

employees hired since June 1, 1996 with the proviso that the

employee shall be eligible for the educational incentive or

longevity, which ever is greater, but not both.

 

            I propose this adjustment to the eligibility of education

incentive for two reasons. First, on the basis of Table 3 , it

will improve the wage position of the new hires relative to

their comparables and in subsequent years will reduce the

position of those in  higher longevity classifications vis a vis

others in a similar position among the comparables. The

structure will shift such that the "4.01%" in Table 3 will tend

to fall and the "2.21%" at 10 years longevity will tend to go

up. Overall the wage rates of the Port will fit the pattern in

the ten comparable jurisdictions more effectively than now.

 

            Second a substantial number of the comparables have

developed a matrix of educational incentive and longevity, not

entirely unlike that incorporated here. In addition a matrix

between longevity and educational incentive recognizes the

interrelationship between the two and that increased

productivity does not result cumulatively from the two factors,

education and on the job experience (longevity). The two

factors provide overlapping value to the employer.

 

            D.      DECISION AND AWARD: EDUCATIONAL INCENTIVE ELIGIBILITY

Item 21)         

 

            I decided and award that Appendix A, PAY RATES be completed

at Section V. Educational Incentive in the new Agreement as

follows :

 

            A. For officers hired before June 1, 1996:

 

                        Base pay for Port Police Officer "A" classification

shall be increased by the following educational incentive

schedule.

 

                        Percent of "A" Rate Degree                                    Degree

 

                                                2%                                          Associate of Arts Degree

                                                4%                                          Bachelor's Degree

                                                6%                                          Master's Degree

 

            B. For officers hired since June 1, 1996:

 

            (1). Base pay for Port Police Officer "E", 'D", "C" and "B"

classifications shall be increased by the following educational

incentive schedule:

 

                        Percent of "A" Rate Degree                                    Degree

 

                                                2%                                          Associate of Arts Degree

                                                4%                                          Bachelor's Degree

                                                6%                                          Master's Degree

 

                        (2).       Base pay increases provided for in (1) above

shall be available only to those police officers who have

successfully completed probation.

 

                        (3)        Police officers, hired since June 1, 1996, shall

be eligible to receive the educational incentive or longevity

pay, whichever is larger, but not both.

 

            C.        This Section V Educational Incentive of Appendix A, PAY

RATES shall be effective January 1, 2000.

 

V.        CANINE TEAM DIFFERENTIAL (Item 12).

 

            A.        PROPOSALS OF THE PARTIES

 

            The Union proposes a canine team differential of 4% of the

employee's base pay.

 

            The Employer proposes to continue the canine team

differential at 2% of the employee's base pay.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

                       

            1. Union.        

            The Union argued for the higher differential because of the

extensive training and FHA certification required for each team

of officer and dog. Five teams of explosive-detection and one

narcotics-detection team are maintained by the Port. The Port

has all but one of the certified explosives-detection teams in

the State.

 

            In addition to the regular patrol duties, the officers on

the canine teams must care for their animals and maintain

control over them at all times. When called out to conduct a

search for explosives, the officer on a canine team faces

"perhaps the greatest physical risk of any police officer," the

Union claimed.

 

            Further, the Union contended that the canine team

differential among comparables was greater than at the Port.

Reporting only the differential for the Seattle Six, the Port is

at 2%, the lowest of any of the six jurisdictions, even though

the most stringent training is required at the Port. The

average cited by the Union for the six jurisdictions was 4.6%,

and its proposal was only for a 4% differential.

 

            Although the officers receive one-hour time off and one

hour of overtime for each shift worked and one hour for each day

off for care of the animal, according to the Union, this "time

premium" should not be taken into account when determining the

differential since it is not a "premium‘ at all.” ‘It is

nothing more than pay for hours worked during what would

otherwise be off-duty time.“ Care of the dog is work time and

resulted from a Fair Labor Standards Act lawsuit. This pay is

separate and distinct from the differential premium pay, the

Union asserted and should not be counted toward comparisons

among the comparables.

 

            Finally, the Union believes that a comparative analysis

cannot be done that is accurate and comprehensive because of the

differing arrangements among the jurisdictions, and reliance

should be placed on the simple straightforward differential

percentage provided by other jurisdictions. Accordingly, on

the basis of the above reasons and considerations, the Union

requested an increase to four percent in the canine team pay

differential, primarily because of the higher differential at

other jurisdictions.

 

            2.  Employer

            The Employer contended that the Port officer on the canine

team receive both a time and a pay premium that is 70% higher

than the next highest premium paid among the smaller

jurisdictions and over double what is provided by any of the

Seattle Six. On this basis no increase in the 2% differential

is justified.

 

            Acknowledging that the computation of pay for the officers

on the canine teams may be complex, the Port maintained that the

total compensation should be considered, not the single

differential premium pay alone. In some jurisdictions, a time

premium is provided; in others both a differential pay and a

time premium are provided and in Bellevue and King County only a

differential is paid. Thus it is essential to reduce all of the

extra compensation to these officers to a common base of hours.

 

            In this regard the Port officer received pay for 598 hours

for care of the animal and for work on the team. Seattle has

325 hours, Everett at 182, Renton at 248 and Tacoma at 208

hours. Kent allows 180 hours and Tukwila 244 (E 190-192; Er Br,

p 68). This compares to 598 hours paid for by the Port

including one hour of released work time on each scheduled

shift.

 

            Even though the pay differential is lower at the Port than

elsewhere, the time premium is substantially greater. No

increase in the pay premium is warranted under these

circumstances.

 

            C.        ANALYSIS    

 

            The substantive issue between the parties in this instance

is how to compute the premium, i.e., whether both time and pay

premiums should be considered. Since some officers on canine

teams in other jurisdictions get only a pay premium, as in King

County, yet must do the same work as those who receive both a

pay and a time premium, as in Renton, logically both should be

computed in order to make reasonable and like comparisons across

comparables. I rejected the Union argument that time premiums

should be ignored in comparisons across the comparables.

 

            The reasonableness of counting both time and pay premiums

is illustrated by contrasting King County and the Port’s

compensation to the canine teams. King County pays its officers

on the canine team a 10% premium on the second step, or in 2000,

$417.10 each month. At the Port, the officer receives one hour

and a half of overtime on each scheduled day in addition to

working a full shift, one hour of which is allowed for care of

the dog. Thus whether the hour of released time is counted

towards a time premium, the Port officer does receive a 2% pay

differential plus 13 hours of overtime (19.5 hours at straight.time)

during each month for work n the canine team and for care

of the animal. This amounts to approximately $590.00 per month

(13.3% of base pay with a 3% increase over 1991, or

substantially more than the King County officer receives.

 

            But in addition, the Port officer receives one hour each

day with pay to care for the dog that is not available to the

King County officer. Even if the later is not counted as a

premium time, no pay advantage exists for King County officers

over the Port officers on the canine teams. But including the

time off and time paid each day for care of the dog, as the Port

argued, makes the Port premium pay for the officer on the canine

team more than that paid in any jurisdiction among the

comparables (E 191 and 192; CBAs).

 

            On the basis of consideration of the practices among the

comparables alone, I concluded that the proposed increase in

differential pay for the officers on the canine teams should be

set aside and the provisions of the current agreement continued

in the new contract.

 

            D.      DECISION AND AWARD: CANINE TEAM DIFFERENTIAL (Item 12).

I decided and award that Appendix A, PAY RATES be completed

at Section VII. ASSIGNMENT AND SPECIALTY PAY, paragraph D.

Canine Differential in the new Agreement, as follows:

 

            The pay differential for an officer assigned to the K9 unit

shall be 2% above the employee's base pay rate. Such

officer shall also receive the following compensation:

(1) (as now agreed between the parties) .... ETC.

 

VI.       DIVE  TEAM DIFFERENTIAL (Item 13).

 

            A. PROPOSALS

            The Union proposes a dive team pay differential of 4%.

 

            The Port proposes to retain the current dive team pay

            differential of 2%.

 

B. CONTENTIONS IN SUPPORT OF PROPOSALS

            1. Union

            The Union argued for an increase in the dive team

differential because of the "significant risks and dangers" in

operating in a "hostile environment." Risks exist even when

raining, from embolism, tide, visibility and marine life.

These risks have resulted in injury to many, the Union noted (U

70 and 71). In addition to actual service dives numbering eight

to twelve a year, the team must train once or twice a month.        

 

            The Union pointed out that the dive teams operates in the

same waters, do the same tasks as other dive teams in the area.

Although Bellevue, Renton and Tacoma have no team, the others

pay an average of almost 5% among the Seattle Six. This

percentage is well above what the dive team receives at the Port

and justifies the increase from 2% to 4%, according to the

Union. Even though the number of call-outs are few, the team

must be prepared at all times and undergo continual training.

The increase in the differential is fully justified by the

comparables and fully warranted given the nature of the work.

 

            2. Employer

 

            The Employer noted that the dive team is made up of persons

who like to dive and thus given the few times the team is called

out, no increase in the differential is warranted at this time,

he Employer contended.

 

            The dive team had only three calls in the first three

months of 2001, none of which were unusual. These included the

recovery of items fallen from the dock during the earthquake,

unwinding a line around a cargo ship's propeller, and recovery

of some drugs that had been thrown overboard during a drug bust.

Although the dive team performs a valuable service to the Port

and the community, the infrequency of incidents for which team

members are called does not warrant an increase in the dive team

premium, and those that have occurred seldom require only a few

members of the team. According to Ms Kirk, the Port dive team

is used much less frequently than either the King County or

Seattle dive teams (T VI, 51:1-3).

 

            Finally, the Port alleged that it has had no difficulty in

getting officers to serve on the dive team as more officers

apply than there are positions available. Those who are on the

team are diving enthusiasts, and enjoy the opportunity whether

paid or not, the Port pointed out (T 11, 24:10-17).

 

The approximate $1,000 premium pay now given the dive team

members each year is adequate and fair, and the increase to 4%

is not warranted, the Port concluded.

 

            C . ANALYSIS          

 

            I concluded that the 2% dive team differential now paid is

adequate and fair for the "extra" work that the officers do in

this instance. Clearly, differential pay for certain work is

related to the availability of the skill to do it and to the

frequency with which work of that kind is required or needed.

Here the evidence on the infrequent use of the dive team and on

he nature of its make up of diver enthusiasts affirms that the

team does not compare to the teams in other jurisdictions.

although the quality of the team need not be questioned, I

concluded that the dive team for the Port was more of a

convenience than a necessity, and hence the differential in

pay appeared adequate. I affirm below that no change in the

dive team differential should be incorporated in the new

agreement.

 

            D.      DECISION AND AWARD: DIVE TEAM DIFFERENTIAL (Item 13).

 

            I decided and award that Appendix A, PAY RATES be completed

at Section VII, ASSIGNMENTS AND SPECIALTY PAY, paragraph F. Dive

Team Differential in the new Agreement, as follows:

 

            Officers assigned to dive team duty shall receive 2%

differential above the employee's base pay rate.

 

VII. TACTICAL SERVICES DIFFERENTIAL: (Item 14).

 

            A. PROPOSALS

 

            The Union proposes a tactical services (TSU) team

differential of 4%.

 

            The Employer proposes to retain the differential of 2% for

the tactical services unit in the current Agreement.

 

            B. CONTENTIONS IN SUPPORT OF PROPOSALS

            1. Union

            Although the Port has had a SWAT team for several years,

actual incidents were infrequent and most of the effort went

into training. In the spring of 2000, the Port joined the

Valley SWAT team composed of officers from Kent, Renton, Auburn,

Tukwila and now Federal Way. Here the teams train twice a month

and Port officers respond to assist other jurisdictions with

regard to "live" incidents.

 

            The Union contends that the differential should be

increased to 4% because Renton, Kent and Auburn as well as

others in the Seattle Six pay officers, on average, a 4%

differential for work on the tactical service unit. Port

officers on the Valley SWAT team receive less than other members

of the team, and according to the Union, should be receiving a

ay differential equal to the 4% average among other

jurisdictions.

 

            2. Employer

 

            The Employer believes that the 2% pay differential for the

TSU is sufficient in relation to the work the team members must

do. The Port team has been and is relatively inactive. It was

because of this that the Port joined the Valley Response Team

(SWAT) so that the Port officers could get some practical

experience outside of training. But even now, if an incident

arise where a TSU may be required, that jurisdiction decides if

Valley Response Team members from other jurisdictions, including

the Port, are required. Even then usually only two members

would respond. The workload of the Port TSU team is very low,

and until more experience is gained in the Valley SWAT team, the

differential should remain unchanged.

 

            In addition, the Port pointed out that among the five

jurisdictions on the Valley Response Team, neither Federal Way

nor Tukwila provide for a differential, although the other three

do. The average of these five is just over 2%, the Port pointed

out. Further, although the tactical response teams in Seattle,

King County and other Seattle Six jurisdiction do pay a higher

pay differential than the Port, the volume of activity is many

fold greater than at the Port. The type of incidents for which

a SWAT is required do not appear at the Port except in rare

circumstances. Accordingly the risks and dangers involved are

much less at the Port than elsewhere.

 

            The Port contends that the differential for the TSU be left

at 2% and suggested that after more experience is gained with

the Valley Response Team that the matter be reexamined at that

time.

 

            C. ANALYSIS

 

            A major difference between the TSU with the Port and other

jurisdictions is the frequency with which incidents arise over

which the special skills and expertise of the SWAT would be more

effective than regular officer efforts. “Shooters, hostage

situations, barricaded person situations“ are far more numerous

among other jurisdictions than at the Port. As Kimsey testified

here has not been a “terrorist“ attack at the Port in 28 years.

As the Employer emphasized, “there simply are not that many

58.I, 213:3-6).

 

            The risk and dangers to which the TSU members may put

themselves relative to the normal duties of regular officers

appear as the primary reason for a pay differential for TSU.

Because Port officers are much less frequently put in the

"uniquely dangerous" situations, little reason exists to

increase the differential relative to those officers in other

jurisdictions who have a much heavier burden of uncommon and

somewhat more dangerous incidents.

 

            Although the larger jurisdictions among the comparables pay

higher differential for TSU than the Port, they have a larger

demand for the services of such units. On the other hand, as

pointed out by the Port, the jurisdictions that make up the

Valley Response Team average a 2.1% differential compared to the

2% paid by the Port (E 193). Under these circumstances, I

concluded that no basis existed to increase the pay differential

or the TSU at this time. I do note the Port impression that

once the Valley Response Team gets in full function and the Port

TSU gains more experience in handling unique and dangerous

situations, the differential should again be reexamined for a

possible increase.

 

            D.      DECISION AND AWARD: TSU DIFFERENTIAL. (Item 14).

            I decided and award that Appendix A, PAY RATES be completed

t Section VII, ASSIGNMENTS AND SPECIALTY PAY, paragraph C. TSU

differential in the new Agreement, as follows:

 

            Effective January 1, 2000, the pay differential for an

officer assigned to TSU shall be two percent (2%) above

the employee's base pay rate.

 

            VIII. DETECTIVE DIFFERENTIAL (Item 15).

 

            A. PROPOSALS

 

            The Union proposes a detective differential of 4%.

 

            The Employer proposes to retain the 3% detective pay

differential in the current Agreement.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1. Union

            The Union pointed out that the detectives at the Port

perform duties similar to the duties in other departments, have

the same risks and workings conditions, for the most part, as

detectives in other departments, and currently are busier than

ever. The Port and Renton at 3% pay the lowest premium for

detective work among the Seattle Seven, the Union stated, with

the most common differential being 4%. These circumstances

support the 4% differential rather than the current 3%, the

Union concluded.

 

            2. Employer

            The Employer contended that the 3% differential was more

than adequate given the generous clothing allowance by the Port

and the nature of the crimes investigated there relative to the

situations in other jurisdictions (E 192). There are fewer

crimes to investigate at the Port of a more complex nature such

as rapes and homicides that require the full panoply of skills

of a detective, than among the comparables. The Port noted that

an average of 2,245 cases of burglary were investigated per

comparable among the Seattle Six but the Port had only 22.

There were no rapes or homicides at the Port in 1999 (E 5 0 ).

Also, according to the Port, Tacoma pays no premium, Bellevue

went to 4% only by reducing its clothing allowance, and among

the Seattle Six, the average pay differential is only 3.6%. When

the relatively more generous clothing allowance at the Port is

considered, the 3% pay differential should be retained in the

new Agreement, the Employer concluded.

 

            C.        ANALYSIS

 

            Although it would appear that the nature of the

investigative work at the Port is somewhat different and

requires less expertise overall than in other department among

the comparables, the pay differential for the ten comparables

lends an average less than the 3% now paid by the Port. Three

pay no differential, two pay 3% and five pay 4%, for an average

of 2.6%. When the larger clothing allowance at the Port

relative to other jurisdictions is considered, the 3% now paid

the detective as a premium represents near the best among the

comparables. On this basis I concluded to leave the detective

differential at 3% as in the current Agreement.

 

            D.        DECISION AND AWARD: DETECTIVE DIFFERENTIAL (Item 15).

 

            I decided and award that Appendix A, PAY RATES be completed

at Section VII, ASSIGNMENTS AND SPECIALTY PAY, paragraph A,

Detective Differential in the new Agreement, as follows:

 

            The pay differential for an officer assigned as a detective

shall be three percent ( 3% ) above the employee's base

rate..

 

            IX.  CRISIS NEGOTIATION UNIT DIFFERENTIAL.  (Item 16).

 

            A.        PROPOSALS

 

            The Union proposes to add to the Agreement a pay

differential of 3% for the Crisis Negotiation Unit

 

            The Employer proposes to retain the current practice of

paying no differential for officers assigned to the CNU.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            The Union based the proposed 3% differential upon the

training required for this work, that the employee faces risks

beyond those accepted by a regular patrol officer, and that

Everett and Seattle departments pay 4% and 3% respectively for

the CNU. The proposal of the Union is for the lowest among

those who pay the differential among the comparables, and should

be placed in the new Agreement.

 

            The Employer contended that only two call outs were made in

the last year, that no primary danger to the officer is evident,

only to the suicidal subject that is being dealt with, and that

among the ten comparables only Everett, Seattle and Auburn pay a

premium for officers in the CNU (T I, 8 9 3 5 - 90:3; 91:2-5; E

192, U 66). The Employer concluded that no basis existed here

to support any pay differential for officers on the CNU.    

 

            C.        ANALYSIS    

 

            I concluded that the work of this unit was relatively

negligible, that no special risks arise from the work, and that

the prevailing pattern among the ten comparables was to follow

he practice of the Port and not provide a differential for CNU

work.

 

            D.        DECISION AND AWARD: CRISIS NEGOTIATION UNIT

DIFFERENTIAL. (Item 16).

 

            I decided and award that

 

            No pay differential for the Crisis Negotiation Unit will be

included in the new Agreement.

 

X.        BICYCLE PATROL DIFFERENTIAL (Item 17).

           

            A.        PROPOSALS

            The Union proposes to add a bicycle team differential of 3%

to the new Agreement.

 

            The Employer proposes to retain the current practice of

paying no differential for officers assigned to the bicycle

patrol.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            The Union contended that the pay differential for the bike

patrol was justified because it increases the efficiency and

productivity of the patrolman. In addition, more risks are

associated with the bicycle than normally since riding is done

in crowds and among traffic where accidents are more likely.

The Union noted also that the speed of movement of the officer

rings him upon a situation more rapidly than under other patrol

practices, and increases risks to him in that way.

 

            The Union noted also that Bellevue and Renton officer

receive a 3% premium for being a part of the bicycle team, which

is the same pay differential sought here (U 66; E 192). The

increased productivity, added risks in riding a bicycle, and the

pay in comparable jurisdictions justify the 3% differential that

should now be added to the new Agreement, the Union concluded.

 

            The Employer acknowledged that it benefits from the use of

bicycles by the officers, but officers do so for only a part of

their shift, although this depends upon the exact assignment.

None of the officers have certifications from the State or the

IMPBA (T 11, 46:2-8). Further, as Sergeant Bartol acknowledged

the risk of riding a bicycle downtown is significantly higher

than in the areas that Port police generally ride their bikes (T

11, 47:4-15). Both Bellevue and Renton police ride in traffic-

congested areas, the Port noted. Not mentioned by the Union is

the fact that none of the other jurisdiction among the ten

comparables provides for a pay differential for the patrolman on

a bicycle. According to the Employer, "the mere fact that

officers ride bikes does not and should not require that they be

paid additional money. " Here the facts do not support

implementation of a premium for the bike patrol, the Port

concluded.

 

            C.        ANALYSIS

 

            I concurred with the Employer in this instance. The

contention regarding extra risks and dangers encountered by the

bike patrol were not persuasive. Riding a bike only part of a

shift discounts the appropriateness of a pay differential. And

here, no support can be gained by looking at the comparables.

Eight of the ten do not have bike patrol pay differentials.

accordingly, I concluded that the new Agreement should remain

silent regarding any pay differential for patrol officers that

ride bicycles.

 

            D.        DECISION AND AWARD: BICYCLE PATROL DIFFERENTIAL. (Item

17).

 

            I decided and award that

 

            No pay differential for patrol officers who ride bicycles

will be included in the new Agreement..(Item 18).

 

XI.       FIELD TRAINING OFFICER DIFFERENTIAL.  (Item 18).

 

            A.        PROPOSALS

 

            The Union proposes to increase the FTO pay differential to

5% without regard to the number of recruits assigned including

None or to the Phase of training.

 

            The Employer proposes to pay the FTO a differential of 6%

during Phase II training and 4% during Phase III training,

payable only during the month when a recruit is assigned to the

officer.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1. Union

            The Union contends that the proposal of the Employer takes

advantage of a mutual agreement to grant the Port relief by a 4%

flat rate because the latter now is no longer beneficial to the

Port. The Port now wants an only-while-training rate because it

is less expensive to have such a rate when the number of

recruits is anticipated to decrease and an increase in the

number of FTOs will further reduce the compensation of those

officers .

 

            The Union argued that the training of recruits takes an

enormous commitment of time and energy since the FTO works with

the recruit every day and must take additional time to complete

paperwork and patrol functions (See T I, 74-75).

 

            Asserting that the Port proposal is a self-serving one and

unjust, the Union contended "the evidence demonstrates that

there are good reason for maintaining the flat rate." It is

easier to administer and no difficulties arise over when an

officer trained a recruit. Other specialty pay premiums are

paid for all hours worked and not just when engaged in the

activity of the specialty. Further, the FTOs without recruits

still have duties and responsibilities by continued training and

maintenance of skills; breaks to decompress; relearn, work

through problems and develop improvements for the program.

According to the Union training by the FTOs does not cease at

the end of Phase III training who play an important role in the

development of young officers.

 

            Finally, the Union maintained that the Port proposal would

undermine the program of training. The program is “mentally

draining“ because of the responsibilities in training, the Union

asserted. Difficulties exist now in retaining officers. Kitamura

opined that the Port proposal would lead to no FTOs, and that if

none volunteered, no commitment for training would be

forthcoming if the Employer compelled an officer to be an FTO.

The future of the Department depends upon adequate and proper

training of the new officers, the Union concluded, and now is

not the time to reduce the compensation of the FTO as the Port

proposes. The pay differential for FTO should be 5% regardless

of the number of recruits trained, the Union concluded.

 

            2 . Employer

            The Employer noted first that only one officer was still in

Phase II training and none were currently in or scheduled to

enter the academy, and thus there is much less activity in the

FTO program than over the last couple of years (T I, 93:17 -

94:18; T 11, 78:13-23).

 

            According to the Employer there is a significant difference

in the level of activity for an FTO during Phase II and during

Phase III that justifies a difference in the specialty pay. In

Phase II the recruit rides with the FTO, but in Phase III, he

does not (T V, 188:10-21). Here the FTO is to be “available”

or the recruit to answer questions and discuss problems, etc.

during both Phases reports are made, but the Phase III requires

monthly evaluation only. Officer Minnehan testified that she

had little contact with her Phase III FTO (T III, 194:9-14).

And further, the Port alleged, that if an officer was not

working at all, no differential pay should be allowed. Here

the FTO is not subject to being called out but has assignments

controlled by the Port. The FTO is either assigned or not

assigned,

 

            Among comparable jurisdictions practices support the Port's

proposal. Among the Seattle Six, three pay FTO only while

actually training, two have no differential, and one pays the

officers a differential on all hours worked (E 188). Among the

smaller jurisdictions, only Auburn pays for all hours, while

Kent and Tukwila pay only while training. Tukwila has no

differential, however in 1998 the city bought out specialty pay

with a 1.3% across the board wage increase (CBA, p 21).

Premiums are lower and most jurisdictions pay only while

training is going on, the Port noted.

 

            In conclusion, the Port noted that the slow down in

training now justified the payment of the differential only when

the officer is training. In addition, the greater intensity of

training in Phase II justified the higher rate than during Phase

III training.  Finally, the Port proposal is generous and

exceeds what is being done among the comparables. The Port

proposal should be placed in the new Agreement, the Port

concluded.

 

            C. ANALYSIS

 

            The differences in the proposals raised three issues. The

first is the matter of a flat rate for all training or separate

rates for different phases of training. The second issue was

determining the level or levels of the pay differential. The

third issue concerned the payment of the FTO only while training

or for all hours worked.

 

            The differences in the level of effort, its intensity and

the range of responsibilities as well as specific duties to be

performed in Phase II persuaded me that differential rates made

the most sense. The above description of the work by the Union

related primarily to Phase II and demonstrated a major

difference in what the FTO must do in the earlier training

period relative to Phase III. The latter is more in the role of

observer and evaluator, as the training technique, rather than

on the spot, face-to-face, instruction and relationships. The

latter training practices are more far more demanding of the

trainer than the Phase III activities. Accordingly, I concluded

that FTOs in Phase II training should receive a higher

differential in pay than those in Phase III.

 

            Second, the Port's proposal of 6% and 4% for Phase II and

Phase III work respectively exceeds the payments made for

training in the ten comparable jurisdictions. Table 6 summarizes

training pay.

 

            Payment on all hours occurs in only two jurisdictions, and

at a rate substantially lower than the 5% proposed by the Union.

Rather payment of a premium among the remainder of the ten

comparables, if paid at all to Field Training Officers, is made

only when training takes place and a recruit or recruits are

assigned to the FTO. Although why the King County specialty pay

is so substantially higher than the others went unexplained,

including it with the others makes a single rate average of 4.9%

or just above 5% only 3.75% if King County is excluded as an

unexplained aberration. When balanced against the fact that

three jurisdictions pay officers no training premium at all, the

Port proposal is clearly equal to or better than the average of

what is paid among he ten comparables and deserves

implementation.

 

                        Table 6 - Pay Differentials and Periods Paid for Field

            Training Officers among Ten Comparable Jurisdictions, 2000

 

                        AGENCY                                Percent                                   When Paid

                                                                     Differential

 

            Auburn                                                      3%                                                All Hours

            Bellevue                                                   2                                        All Hours

            Everett                                                      0                                            N/A

            Federal Way*                               0                                            N/A

            Kent                                                          6                                   When Assigned

 

            King County                                           11.5                                While Train’g

            Renton                                                       3                                  While Train’g

            Seattle                                                                   0**                                   N/A                                                     Tacoma                                                      2***                             While Train’g

            Tukwila                                                      2                                   While Train‘g

 

            * Bought out premium pay in 1998 for 1.3% salary increase.

            ** 3% paid for Academy instructor; not pay for FTO.

            *** 2% paid for 60 days, then goes to 5%.

 

            I have given little weight to the allegations that the

adoption of the Port proposal will lead to the demise of the

Port‘s training program or to the fact that the compensation of

some FTOs may decrease under the Port Proposal. Since other

jurisdictions use the same or similar format in training that

the Port uses, and those jurisdictions are paying less than the

Port for the FTO differential, I am not convinced the training

program will fall apart. In addition, the testimony indicated

that Sergeant Klineburger conceptualized the proposal of the

Port in the first place (T V, 188:22 - 189:15; VI, 39:6-23; 11,

106:4-9). Nor is there any reason to believe that lower

compensation than previously paid by the Port, if that in fact

will be the case, should lead to disastrous results. And

finally, I rejected any notion that any officer assigned to

raining, even if not a volunteer, would fail to give his best

efforts to the program.

 

            For these reasons and considerations I found the Port

proposal the preferable one for the differential pay for Field

Training Officers.

 

            D.        DECISION AND AWARD: FIELD TRAINING OFFICER DIFFERENTIAL.

(Item 18).

 

            I decided and award that Appendix A, PAY RATES be completed

at Section VII, ASSIGNMENTS AND SPECIALTY PAY, paragraph H,

Field Training Officers Differential in the new Agreement, as

follows :

 

            (1). The pay differential for an officer assigned as a

Field Training Officer for training recruits during Phase 11

shall be six percent (6%) of the employee's base rate for

the period while training a recruit.

 

            (2). The pay differential for an officer assigned as a

Field Training Officer for training recruits during Phase III

four percent (4%) of the employee's base rate for

the period while training a recruit.

 

            (3). The officer assigned as a Field Training Officer

shall receive the 6% or 4% of his monthly base salary, as

applicable, for any month in which he/she is in a training

status for one-fourth or more of the officer's regularly

assigned straight time work hours during that month.

 

            (4). To be eligible for either the 6% or 4% differential

the officer must be certified and assigned as an FTO.

 

            (5). Although the Department shall assign the recruits to

be trained by each FTO, ordinarily, but not necessarily always,

only one recruit will be assigned to each FTO in Phase II at

one time and ordinarily no more than two will be assigned each

in Phase III at one time.

 

XII.     EVIDENCE IDENTIFICATION TECHNICIAN/CRIME SCENE SPECIALIST

DIFFERENTIAL PAY. (Item 19).

 

            A.        PROPOSALS

 

            The Union proposes differential pay of 5%, 7% and 10% for

the three levels for Evidence Identification Technician/Crime

Scene Specialist.

 

            The Port proposes to retain the current differential pay

steps at 3%, 5% and 7%.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            The Union alleged that this position of evidence

technician/crime scene specialist is a unique one and essential

to the Department, The single incumbent is now at the highest

level, and for the most part is doing work that in other

jurisdictions is performed by Sergeants or Lieutenants. The

position was modeled after one in Bellingham that the Union

asserts pays a higher rate than at the Port. Accordingly, the

Union argued to increase the levels of premium from 3%/5%/7% to

5%/7%/10%.

 

            The Employer pointed out that the incumbent was at the

highest level and had been there for a number of years, and at

the present time received the next to largest premium of any

officer in the Department. Since in other jurisdictions by

reason of the much larger number of crimes, usually three

positions are maintained instead of only one as at the Port.

Many of those positions provide only a 3% premium, the Port

stated (T VII, 153:24 - 154:3). In many cases civilians do the

work with no 'premiums." Other evidence rooms have a Sergeant in

charge that supervises two or three or more employees. Here the

evidence room is so small that the incumbent does the work

without any supervisory duties and what Sergeants and

Lieutenants get elsewhere to the Port's

circumstances, the Employer argued. Since the premium must be

based on the position and not the person who may be occupying it

at the moment, according to the Port, no basis exists for

increasing the premium for the Identification Evidence

Technician/Crime Scene Specialist position.

 

            C .       ANALYSIS

 

            In the absence of any direct comparables, I was not

persuaded to adopt the proposal of the Union for an increase of

2% in each step of premium pay for this position. Although the

Port situation was established on the pattern of the Bellingham

Police Department, the time lapse since then (1987) makes a

comparison with any position in that Department unreliable in

addition to falling outside of a comparable jurisdiction as

determined above. Officer Demetruk acknowledged that to the

extent that portions of the job could be identified elsewhere in

surveys, the going premium was about 3%, although the location

of these positions was not identified (T VII, 153:22 - 154:3).

 

            Further I concurred with the Employer that comparing what

the incumbent in this position does to the duties and

responsibilities of Sergeants and Lieutenants in other

jurisdictions of the comparables was irrelevant, for the most

part. This position has no supervisory duties and operates a

relatively small evidence room and to the extent that crime

scene management is necessary, only a relatively few incidents

(crimes) occur in relation to what goes on even in the smaller

jurisdictions among the ten comparables (see E 5 2 ).

I

            I was not persuaded that the premiums should be increased

as the Union proposed for the Identification Evidence

Technician/Crime Scene Specialist.

 

            D.        DECISION AND AWARD: EVIDENCE IDENTIFICATION

TECHNICIAN/CRIME SCENE SPECIALIST.  (Item 19).

 

            I decided and award that Appendix A, PAY RATES, be

completed at Section VII, ASSIGNMENTS AND SPECIALTY PAY,

paragraph G, Crime Scene Specialist/Evidence Identification

technician in the new Agreement, as follows:

 

            Recognizing the technical nature of this assignment, ...

(etc.) .

 

            Candidates for this assignment shall be evaluated ... (etc.) .

 

            The differential premiums, as a percent of the employee's

base pay, shall be as follows:

 

                        First Step: ------ 3%

                        Second Step: ----- 5%

                        Third Step: ------ 7% .

 

XIII.    NIGHT SHIFT PREMIUM.   (Item 20)

 

            A. PROPOSALS

 

            The Union proposes to add a 5% of base pay premium to the

Agreement for work on the night shift at Section VIII of

appendix A, PAY RATES.

 

            The Employer proposes to retain the current practice of not

paying a night shift premium.

 

            B. CONTENTIONS IN SUPPORT OF THE PROPOSALS

 

            The Union argued that the night shift disrupts family life

and merits a premium for that fact. It contended also that in a

bidding system, few senior officers are on the night shift, and

thus inexperienced officers are primarily on duty. This reduces

the effectiveness of the night shift force. And third, the City

of Tacoma provides a 5% shift differential for the graveyard

shift. These elements justify the 5% night shift proposal of

the Union, it concluded.

 

            The Employer on the other hand maintained that it had

encountered no difficulty in getting qualified officers to work

on the night shift, that, in fact, some employees for various

reasons prefer to work at night. Indeed, the officers have four

nights out of each week without work on the current three 12%

our shift current weekly schedule, a very favorable schedule,

the Port asserts. In addition, the proposed shift premium

amounts to a 2% percent increase for the bargaining unit,

assuming that half work at night and half on the day shift.

Given the position of the Port officers' salary wise relative to

officers in the comparables, no such increase in compensation

can be justified. Nor is there any evidence of an industry

practice to provide night shift differentials, and none except

Tacoma among the Seattle Six or among the smaller jurisdictions

pay such a premium. The Union's proposal should be rejected,

the Port concluded.

 

            C.        ANALYSIS    

 

            I concurred with the Employer‘s position in this instance

and shall deny the addition of a shift premium to the new

Agreement. The arguments of the Employer above are persuasive

relative to those of the Union.

 

            The absence of any practice in the industry generally as

well as among the ten comparables to provide a night shift

premium, except Tacoma weighs against an arbitrator breaking

“new ground“ for the parties in this proceeding. Although an

equal distribution of experience and seniority might be

advantageous, the employer has the prime responsibility to

determine the competency and adequacy of its patrols. Testimony

of Kimsey indicated that the watches were filled properly (T VI,

17320 -174:3). Finally, the increased compensation that would

result from the premium is not justified when salaries of Port

officers are compared to those of other jurisdictions (Tables 3

and 4 above).

 

            Lastly I noted the quotation by the Port of a recent

decision by Arbitrator Snow regarding attitudes of workers

towards evening and night work (Er Br, p 78). Some workers

prefer swing and graveyard work as much as others desire day

work, and find it a rational schedule for their circumstances.

Although many of us prefer only day work, this is no longer

universally true, if it ever was the case.

 

            I shall deny the addition of the night shift premium as

proposed by the Union.

 

            D.        DECISION AND AWARD: NIGHT SHIFT PREMIUM. (Item 20).       

            I decided and award that,

 

            The proposed Section VIII, Shift Premium, Appendix A, PAY

RATES shall be omitted from the new Agreement.

 

XIV.    OPTION NOT TO APPEAR ON MAKE-UP DAY.  (Item 2).

 

            A.        PROPOSALS

 

            The Union proposes to retain the current language in

Article XIII, Section l.a.5 and place it as item 9 in Article XI

- Hours of Work and Overtime, Section 1. - Schedule for Patrol

Officers, B. - Make Up Day, of the Tentative Agreement, U 2, p

9, as follows:

 

            "Make-Up" Day: If an officer so chooses not to work a make

up day, the hours will be charged against their (his/her)

vacation or holiday balances.

 

            The Employer proposal at E 165-166 substitutes the

following for the Union's proposed item 9 above:

 

            If an officer is on vacation for all days during a 28-day

cycle (or cannot have the make-up day scheduled during the cycle

due to the requirements of Section B.5 (above)), the make-up day

will be charged against his or her vacation or holiday balances.

 

            It is the intent of the Port's proposal at Article XI.l.B.

in the new Agreement that the officer shall be required to

actually work the "make-up" day.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Employer

            Since the regular seven-day schedule requires only 37.5

hours during the period, in order to achieve the contracted 40-

hour workweek, a "make-up" of 10 hours is required in each 28-

day cycle. The Employer seeks to require the officer to work

that 10-hour "make-up" shift and eliminate the opportunity for

the officer to opt out of the make up day. As the Employer

explained, "currently, an officer can simply call in and say

that he/she wants to use accrued holiday or vacation time rather

than work the make-up day, and not bother coming to work" and

"opt out of the make-up day on short notice" (Er Br, 43).

 

            The Employer advanced the following reasons for the

proposed change. First, if officers could not opt out, the Port

could make better use of the make-up day for training purposes,

as bringing in trainers from outside the Department. Second,

scheduling could be made with greater certainty. "Holes" in the

schedule from those on vacation and other scheduled absences

could be filled with a measure of certainty. A unilaterally

"opt out" of the make-up day leaves the Department in the

position of relying on overtime in most instances, according to

Kimsey (T VII, 75; E 167).

 

            Although the Union attempted to show that only a small

percent of the employees opt out, usually no more than three or

four officers, or about 10% of those on patrol, in any one 28 -

day work cycle, the Employer pointed out that it had no way of

knowing which 10% will not show up, and leaves the Port with the

problem of filling holes, as noted above.

 

            Third, no other police department has any such provision in

its contract that allows an officer to unilaterally choose not

to come in on a scheduled workday. None of the Seattle Six or

any of the smaller jurisdictions provide for this practice (E

169-70). This day is unlike any other, for even approval must

be obtained for a regular vacation day, the Employer pointed

out.

 

            In addition, a further problem occurs with the make-up day

because of the frequency with which the officers called in

"sick" on the make-up day. Ms Brower, who is the Department

scheduler, testified to some concern over whether the current

system is being abused by the "sick calls" of officers (T I,

124:10 - 125:2). The Port has no effective way to monitor this

behavior it claimed.

 

            Not every make-up day can be used for training, but, in

fact, many make-up days are used for training. Port officers do

a substantial amount of training.  Any claim by the Union that

all make-up days should be used for training is without merit

the Employer maintained. On the other hand, the Port concluded

that all parties believed that more training than now done could

and should be undertaken, and the make-up day is a logical time

to do it if the officers can be depended upon to report for duty

on the make-up day. The Port's proposal is geared to "more

effectively manage mandatory training" requirements and to

provide scheduling certainty, and should be adopted by the

arbitrator, the Port concluded.

 

            2. Union

            The Union argued that the Port did not nor could it

demonstrate a need to eliminate the right of officers to opt out

of a make-up day. The Port claimed that exercising the right to

opt out impaired the ability of the Port to schedule generalized

or "mass" trainings. However, Training Officer Chang testified

that he has not encountered any problems with scheduling

trainings because of an officer opting out of the make up day.

although Chang had the impression that make up days would be

used for training, it has primarily been used to supplement

patrol needs rather than training, a matter acknowledged by

Kimsey as well (T VII, 29; T III, 170-171).

 

            Further, according to the Union, the number of officers who

opt out is very small, only three, four or so from among some 76

officers (U 53). These officers have not disrupted the training

schedule. But, of course, the Union points out, the Port's

proposal is not limited only to those who opt out of training.

 

            The Union pointed out that it had no objection to the

continuation of the seven-day advance notice by 'the officer to

the scheduler of exercising the right to opt out. Indeed this

was a concession the Union alleged to have made in order to

protect the employer from unexpected opting out by an officer,

and to allow the scheduler adequate time to find a replacement.

The Union pointed out that the Port has the right to deny an

opt-out by an officer who fails to give at least seven days

notice.

 

            According to the Union, the Port has not met its burden to

establish that a change in contract language is justified. Very

few officers opt out and when they do it does not disrupted the

training schedule. The Union has given the Employer a means to

deny the opt-out right if the officer fails to provide a seven

days' advance notice. The Union claimed that the existing

language and memorandum of understanding represents a reasonable

balance between the Department's need to be able to schedule

training and patrol and the officer's need to have some

flexibility to opt out of a make-up day. The Union denied any

abuse of the right, and no justification for a change in the

language. The Union requested that the arbitrator retain the

exiting language that allows officers the flexibility to opt out

of a make-up day and charge it against their vacation or holiday

balances.

 

            C . ANALYSIS

 

            The contract language in dispute is unique and found solely

in the Port Agreement. Nothing similar exists in any of the

1 agreements of the ten comparables. In addition, the proviso

I reverses the usual employer-employee relationship in that it

places in the hands of the employee the decision to work or not

to work, rather than to do so at the request and direction of

the employer. These two considerations give substantial weight

to the Port's position and weighs on the side that the Employer

would "hold out" a long time before continuing this provision as

it is because of the inroads on "managerial rights."

 

            The argument of the Employer that the opt-out opportunity

of the officers interfered with certain types of training had

merit. The evidence on the extent of training on the make-up

days was at best mixed and unclear. Clearly some training was

done on the make-up days. But a major and valid expressed

concern of the employer was about "generalized" training

opportunities, such as "HIV type training, blood born pathogen

issues, safety issues" and other "state and federal ...

mandatory trainings," even though many make-up days were used

for specialty training (T VI, 175:7-12; 176:1-3). Although no

training programs had been cancelled because of opting out of

officers, the Employer voiced reluctance to plan such

generalized training on make-up days, especially with outside

instructors, by reason of the uncertainty officers would attend

(T VII, 175:7-20).

 

            The Union argued that a minimum of interference would occur

since only four or five officers opted out each 28-day cycle.

This circumstance cuts two ways. If only a small number take

advantage of the opting out, then the right to opt out is not a

particularly important one. On the other hand, the Employer's

contention raised a larger issue. The Employer has no knowledge

of which four or five will opt out, and thus the interference

with either training and or patrol assignment assumes a larger

burden on the Employer than the numbers of those opting out at

any time would indicate. Either the training and or its schedule

are disrupted or the Employer must fill the "hole" left in

patrol by call-ins on overtime, a specific cost to allow the

individual officer the opportunity to opt out.

 

            Notwithstanding the above arguments, the Union makes a

valid and persuasive argument that the Employer may prevent an

employee from opting out of the make-up day if proper advanced

notice is not provided, and thus avoid the short run problems

alleged above.. Under the Letter Understanding between the

parties clarifying the opting out procedures, the officers are

required to give notice "within seven days of being notified of

the scheduled 'make-up' day" (U 52). If proper notice is not

given, the officer may not opt out of the make-up day unless the

Deputy Chief of the Department gives prior approval.

 

            Brower was clear to affirm "there's certain occasions where

you got less than seven days notice" (T I, 125:16-24). Exactly

why the "seven day notice" has not been enforced on training

schedules was not made clear. Potential grievances over

decisions to deny opting out of make-up days may be involved.

Although the decisions to deny one officer, but allow another to

have the day off is filled with grievance potential, the Union

agreed not to press grievances where decisions were made in good

faith (U 52). This still leaves reasonableness of decision

criteria and their consistent application as bases for

grievances. Additionally the matter may be related to Brower's

concern over calling in sick on scheduled make-up days and the

inability of the Port to monitor such behavior adequately

without creating divisiveness between management and officers (T

I, 124:14 - 125:2).

 

            From another perspective, it is not altogether clear that

the Union has no burden to demonstrate the desirability and

effectiveness of this provision in the same way that the

Employer carries a burden to demonstrate the difficulties and

problems with its existence. It may be an employee right

obtained in prior bargaining, but as any issue, it becomes

subject to review, retention, revision and/or elimination in the

process of negotiations on a new agreement. Under these

circumstances, justification for the existence of a provision is

just as relevant as justification for its elimination in

interest arbitration.

 

            I found the Union's arguments here largely defensive and

for the most part void of any basis on why the employee should

be allowed to opt out of a "make-up" day, aside from the point

made above on adequacy of notice to opt. Opting out of a 'make-

up" day is a "perk," and provides a "benefit" to the employee,

but I could find no justification for the "officers' need to

have some flexibility to opt out of a make-up day" (emphasis

added). In the normal course of events, each officer now has the

option to request an emergency leave and or vacation day at any

time. No evidence came forth to suggest that the Employer

unreasonably denied any such requests, if the employee faced a

personal or family emergency, ran into unusual circumstances, or

a special event of even a nominal nature, as a planned family

outing, for example. As best that I could determine, the opt

out day came as a simple desire not to work that day, and not

for any reason other than to take a vacation or holiday at the

immediate behest of the employee. This is a "benefit" found in

no collective bargaining agreement among the ten comparables.

 

            In addition, although officers work long shifts of 12 1/2

hours, for four days each week and for the same four days each

week, the employee has time off work. (I recognize that some of

the officers are on call by reason of membership on specialty

teams but that on call service is paid overtime for the call out

as well as a pay differential for being on the team). I could

find no pressures of the job that would justify the need each

month for each officer to be assured of four days rather than

only three days off work in a particular week. If pressure is

severe, and I assume at times it is, employees still have

recourse to request vacation and holiday leaves for recuperation

or to decline additional overtime work. Where fatigue may

result from volunteered overtime work at overtime pay rates, the

option to take off work with straight time vacation or holiday

pay would be preferable for the employee rather than discontinue

overtime work. But such a practice would be consistent with the

notion of "taking unfair advantage" thru the opt-out opportunity

on the part of the employee, matter frowned upon by both Union

and Employer.

 

            The Employer actually addressed two problems: the inability

to schedule training on make-up days with the confidence that

all officers would show up, creating uncertainty in the overall

training program and especially for mandated generalized

training sessions; and second, the problems of filling in patrol

"holes" with officers on make-up days since uncertainty again

prevailed on whether or not the officers would report, and when

they did not, the cost of overtime rather than straight time

resulted.

 

            I have concluded that these problems can be separated. I

shall provide below that all days on which training, specialized

and general, is scheduled are mandatory for attendance in the

same manner as the three regular 1235-hour shifts during each

seven days. However, for other assignments or to fill patrol

"vacancies," the employee shall have the right to opt out of the

make-up day assignment if notice in writing is submitted to the

Deputy Chief no later than seven days following receipt of the

notice of the scheduled make-up day. Late notices shall no

longer be accepted even for approval by the Deputy Chief, and

those assignment out of which the employee did not opt under the

seven day provision become mandatory work assignments as the

regular weekly 12%-hour shift. In cases of emergency or other

wise when an absence is necessary, the employee will be required

to seek leave in the regular and normal manner by the use of

vacation and holiday balances.

 

            D.        DECISION AND AWARD: OPTION NOT TO APPEAR ON "MAKE-UP" DAY

 

            I decided and award that Article XI - Hours of Work and

Overtime, Section 1: Schedule for Patrol Officers, B. - Make-up

Day, shall include item 9 in the new Agreement, as follows:

 

            9.         Notwithstanding the other provisions of this Section

1.B,

 

            (a). No officer may choose not to work a make-up day if the

day is scheduled for training.

 

            (b). An officer may choose not to work a make-up day (1) if

the day is scheduled for patrol or other duties NOT training,

and (2) if the officer shall have given a written notice to the

Deputy Chief within seven days of the receipt of notice of

his/her make-up day assignment pursuant to the posted 28 day

cycle schedule.

 

            (c). The hours of a make-up day not worked pursuant to (b)

above will be charged against the officer's vacation or holiday

balances.

 

            (d). If an officer is on vacation for all days during a

28-day cycle (or cannot have the make-up day scheduled during

the cycle due to the requirements of Section B.5 (above)), the

make-up day will be charged against his or her vacation or

holiday balances.

 

XV.      CANINE OFFICERS' WORK SCHEDULE.  (Item 3).

           

            A. PROPOSALS

 

            The Port proposes to place canine officers on a 4 day, 10

hour per day seven-day schedule, as shown at E 172, figure 1 or

2.

 

            The Union proposes to retain the current 3 day, 12% hour

per day seven-day schedule, as currently done at E 172, figure 3

or U 54, figure 1.

 

            B. CONTENTIONS IN SUPPORT OF PROPOSALS

 

            The Employer contended that the new schedule of 4/10s was

required to increase the visibility of the canine team on patrol

in the airport and thus to meet increased pressure from the

Federal Aviation Administration to do so. The present

arrangement of a 12% hour shift was ill suited to use canine

teams on patrol where as the 4/10s makes combinations of

increased patrol time and adequate training much more available.

 

            The Employer pointed out that under the 4/10s as much

training time could be obtained as Kennel Master Thompson

estimated was being undertaken now, and canine officers will

have enough time for training. The Port has no intention of

assigning the canine officer to the drives as part of the

patrol, since this would not be an effective use of the canine.

FAA interest in greater canine visibility in the airport would

be inconsistent with assignment of the canine officers to the

drives, the Port maintained.

 

            The Port denied that any great difficulty would result from

working the canine officers only nine hours alongside of the

regular patrol schedule of 12% hour shift as the canine officers

could be used outside the hours of midnight to 6:00 a.m.

Officers scheduled for the 10-hour make-up days are integrated

into the regular daily schedule of patrol officers without great

difficulty, the Employer noted.  In addition, although canine

officers would be required to work three extra days in each 28-

day cycle, they would work 2% hours less on each day.  Finally,

the Port pointed out that the canine officers receive an

especially lucrative premium for their participation on the

canine teams.

 

            Since a committee during negotiations, make up of employer

and officers, including canine officers, looked favorably upon

the new schedule of 4/10s, the Port asked that the arbitrator

put it into effect in the new Agreement.

 

            The Union maintained that the present schedule worked, so

there was no need to fix it. In addition it was well liked by

the officers, and so should be maintained. Clearly the

Department was aware of the scheduling complexities involved in

integrating the canine teams further into patrol work. The new

schedule would conflict with the 12%-hour daily shift

arrangement, the Union claimed. Even though the Department

seeks additional patrol time, that is not sufficient basis to

discard a system that works now and that the officers are happy

with, the Union alleged. Few gaps, if any in the patrol

schedule would be fixed by the change in hours for the canine

teams. To do so, the Union claimed, would reduce necessary

training time. Many departments do not put canine teams on

patrol at all. Not irrelevant is the increase in days worked by

the canine officers under the Port plan.

 

            The Union concluded to assert that the Port had offered

insufficient justification for changing the canine schedule from

a system that "works well" to one that will be complex and

difficult. The Union requests that the Arbitrator order that

the canine schedule remain a three 12%-hour shift as currently

staffed or on the basis of the schedule recommended by the

canine team at U 54.

 

            C.        ANALYSIS

 

            I have concluded that a change in the schedule of the

canine officers from the current 3 days per weeks with 12% hour

shifts and the make-up day to a week of 4/10 brings no

substantial advantage. The new schedule would complicate

scheduling unnecessarily, and would reduce the officers from

four days off to only three, a disadvantage most other officers

in the bargaining unit do not have.

 

            In addition, since the Port is concerned about insufficient

patrol activity by the canine team, modifications can be made

under the current schedule to do so. First, I am somewhat

concerned what is the "current" schedule. The one shown by the

Employer is different than the one presented by the Union (E

172; U 54) The Union schedule shows nine patrol shifts where

the Employer shows only five.

 

            As I understood the Port sought more patrol shifts with the

canine teams and approximately half the time on patrol and half

in training. The schedule shown by the Union meets that

objective. An extra day of training for one team each week

beyond what the table shows could be planned. This would allow

eight patrols and seven shifts for training, plus the make-up

day in training to equalize what the Port sought. As I

understand and apply the Union schedule, each team would have

12% hours of training each week, and once in each cycle an extra

12% hours plus the ten-hour make-up day for training. Over the

cycle, this equates to 72% hours of training, or 18 hours per

week or about what Thompson said the teams got now in training

(T I, 59:16-18). The balance would leave 87 % hours for patrol

in eight shifts.

 

            I do not presume to know all of the intricacies of

scheduling, but I was convinced that the objective of half on

patrol and half in training or nearly so could be accomplished

by the present schedule.  On that account the schedule does not

need to be changed with resulting moderate complexities and a

loss of three days off each 28-day cycle by the officers. The

Port's legitimate objective of more visibility of the canine

teams at the airport, as indicated by the FHA, could be

accomplished.

 

            Accordingly I shall direct the parties below to establish a

schedule, based on 12% hour shifts that will equalize the time

spent in training with the time spent on patrol and to do so per

the proposed language of paragraph D, with some modification at

Section 2 of Article XI Hours of Work and Overtime of the new

Agreement.

 

            D.        DECISION AND AWARD: CANINE OFFICERS SCHEDULE (Item 3).

            I decided and award that Article XI Hours of Work and

Overtime, Section 2 - Schedule for Non-Patrol Officers,

paragraph D of the new Agreement be completed, as follows:

 

            Canine Officers Schedule. The daily schedule of 12% hour

shifts for canine officers shall remain as presented by the

Union (as the present schedule in page 2 of U 54), except that

the schedule shall be to provide approximately equal time spent

in training (including the 10 hour make-up day) and time spent

on patrol in each 28-day cycle. The parties shall establish a

committee of one canine officer, one patrol officer, union

representatives and management representatives to develop the

full and detailed schedule for the 28-day cycle.

 

XVI.    VACATION ACCRUAL AFTER 22 YEARS OF SERVICE (Item 4).

 

            A.        PROPOSALS

            The Union proposes to add eight hours of vacation for each

year of service up to a maximum of thirty years of service,

i.e., 208 hours after completion of twenty-three (2 3 ) years of

service, 216 hours after completion of twenty-four (24) years of

service, etc. to thirty years.

 

            The Employer proposes to leave the vacation accrual

unchanged as it is in the current Agreement.

 

            B.        CONTENTIONS IN SUPPORT OF THE PROPOSALS

 

            1. Union

            The Union argued, in the first place, that senior employees

needed additional hours of vacation since many were working

large numbers of overtime to augment their retirement benefits

by high earnings in years before retirement. Second, among the

Seattle Six, five departments provide vacation accrual beyond

the 21 years of service now offered by the Port. Among these

jurisdictions, the maximum accrual of vacation is higher in each

than in the Port. The Union noted that the Employer‘s analysis

at E 175 shows that the Port is ”significantly below its

comparables in terms of vacation accrual after 22 years.”

 

            Maximum accruals average 234 hours among the Seattle Six.

If the Union proposal were adopted, the maximum accrual at the

Port would be 256, equal to Bellevue, although slightly higher

than the average. This level of vacation accrual is not

unreasonable given the heavy load of overtime that the senior

officers now work. In any case, matching the average is a modest

request and puts the Port fully in line with the comparables.

he Union proposal is fully justified, and the “arbitrator

should adopt its vacation proposal or some modified version of

it to achieve a reasonable and fair improvement in the benefit

accrual. ''

 

            2 . Employer

            The Employer computed the maximum accrual under the Union

plan as 264 hours. According to the Employer, the Union proposal

is bereft of any support. Although Officer LaBissoniere thinks

vacations are important and additional time is required to

"rest, recuperate and regenerate," from all of the overtime, the

Port pointed out that the overtime was all-volunteer and

additional vacation is hardly an appropriate way to solve the

issue. Better to remove officers from the drives, the Employer

stated. It seems a bit paradoxical to justify the need for more

vacation days on the basis that some officers are voluntarily

giving up the vacation days they already have to work overtime

n the drives.

 

            The Employer contended that the vacation accruals and

schedules were very beneficial to the officers now, and any

change is not warranted. Officers work three days on, and then

have four days off, on non-rotating shifts, ample time off work.

t twenty years of service the Port offers exactly the same

vacation accrual as the Seattle Six. After 22 years, the Port

provides 200 hours, and the average of the Seattle Six at 25

years is only 217. Among the smaller jurisdictions, the Port

exceeds the averages there. These circumstances indicate no

need to expand the vacation accruals for Port officers, the

employer concluded and asked the arbitrator to deny the Union

proposal.

 

            C.        ANALYSIS

           

            My examination of the vacation accruals among the Seattle

after 25 years service shows that four of them provide 216

hours of vacation. If Federal Way is dropped from the analysis

because it is a new Department and has no offices with over 20

years of service, the average vacation accrual at 25 years of

service for the remaining nine jurisdictions is 208. On the

basis of these two data, both of which exceed what the Port now

provides for its senior officers, I concluded that some addition

to the 200 hours currently accrued at 22 years of service should

be extended.

 

            I concluded that a fair adjustment at this time would be to

extend the vacation accrual to 208 hours after 23 years of

service and to 216 hours after 25 years of service. Comparisons

with the comparables cannot justify any additional vacation

accrual at this time. Accordingly I deny the remainder of the

Union proposal.

 

            D.        DECISION AND AWARD; VACATION ACCRUAL AFTER 22 YEARS OF

SERVICE. (Item 4).

 

            I decided and award that Article XII - Vacation, Section 1:

Rates of Accrual should be amended following paragraph (g) in

the new Agreement, as follows:

 

            (h) 208 Hours of Vacation: After completion of twenty-

three (23) years of continuous service.

 

            (i) 216 Hours of Vacation: After completion of twenty-five

(25) years of continuous service.

 

XVII.   TAKE HOME VEHICLES:  BOMB DISPOSAL UNIT (Item 5).

 

            A.        PROPOSALS

 

            The Union proposes to add paragraph (9) at the end of

Article XXI - Benefits in the new Agreement, as follows:

 

            (q) BDU Cars.

 

            1. The Port agrees to provide each officer on the BDU team

            with an assigned car for the duration of that officer's

            assignment on the BDU team.

 

            2. Notwithstanding any provision in the collective

bargaining agreement, the parties agree that BDU offices

assigned a car in accordance with the provision in

paragraph 1 above, shall not be entitled to 50% standby pay

if they work in excess of seven on-call shifts in a 28-day

cycle. All other provisions regarding on-call and call-

back pay shall. still apply. This agreement applies solely

to the BDU team, and nothing in this paragraph shall be

construed as in any way limiting the rights of officers who

are not on the BDU team.

 

            The Port proposes that the provision of three cars to the

BDU of five members that are assigned on a rotating basis should

remain unchanged. This the current practice under the Agreement.

 

            B .       CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Union

            The Union supported its proposal by arguing that provision

of the cars would alleviate the number of times members of the

BDU would be on stand-by pay because of exceeding the

contractual. limit of seven days on call in each 28-day cycle.

Currently, the Department consistently assigns officer on call

for more than seven days, and creates a problem. In addition,

the Department faces time-consuming and costly hassle associated

with the vehicle trading that is required in moving the three

vehicles among the five member BDU team. This constant rotation

and trading are inefficient and time consuming for both the

officers and the Department, the Union claimed, stating that it

interferes with patrol and or training time. Finally, the Union

maintained that Officer Wesson had generated a study for the

Chief and found that additional vehicles were available at the

Port for assignment to the BDU, including, for one, a truck that

on occasion was provided to the unit. Wesson claimed that the

assignment of two additional vehicle would not be expensive.

 

            According to the Union, the officers and the Union would be

willing to exchange the receipt of the take home vehicle for

each BDU member for release of payment of the 50% standby pay

for officers assigned on call more than seven consecutive days

as set out in the contract. The Union claimed that this would

solve both problems, and urged the arbitrator to accept its

proposal to provide all members of the BDU with a take home

vehicle.

 

            2.         Employer

            The Employer contended first that the decision to assign

vehicle to the BDU was premature, since the Chief has not had an

opportunity to study the report of Officer Wesson, and believe

there may be a better way to solve current problems of the BDU

than by assigning two more vehicle to the Unit. Second, the

Employer noted that each on call BDU member is given a take home

car, and that with three vehicles these can be rotated among the

members of the BDU as each members takes a turn in being on call

and not on duty. Wesson's testimony concerned the period prior

to the use of the third vehicle, which the Employer claims has

and will ameliorate the situation substantially.

 

            The Employer pointed out that increasing the number of take

home cars will not materially impact the Port's response to a

bomb incident. In case of a threat only one or two members of

the Unit are called out, not all of them. The on call offices

will have the take home car. Although the car may provide some

convenience to the officer, the cars will not provide any better

service or protection to the public.

 

            Finally, the Employer disagreed with the testimony of

Wesson regarding how expensive the cars would be. With the

expectation of an expansion of the BDU, thus additional

estimated costs of $37,000 per year after an initial outlay of

$20,000 represent a substantial investment for little gain, the

Employer argued. After the Chief completes his analysis of the

situation, the Union can expect other ideas on how to resolve

the officers‘ concerns. For now, the Union proposal should be

denied, the Employer concluded.

 

            C.        ANALYSIS

 

            I have concluded that take home cars for each member of the

BDU is not justified, and accordingly have opted to retain the

current language and practice under the current Agreement. Two

major considerations support this judgment.

 

            First, although it would be more convenient for each

officer on the BDU to have his own assigned car, I was persuaded

that such an assignment does little, if anything to improve the

efficiency of the bomb squad to protect the airport and its

travelers. When only two are called out for any one incident,

with three cars assigned, two must be able to respond. Any

additional cars would not improve this efficiency aspect of the

work of the BDU.

 

            Second, the provision of a vehicle is an expensive

undertaking that has as it prime advantage the reduction of

inconvenience to BDU members in exchanging the cars from one on-

call period to another. I noted in the Wesson memorandum of

November 2, 2000 that “overtime is authorized for the vehicle

exchange ..."(U 56, p 3). Nearly 1000 hours of overtime could be

paid for by the estimated cost of $37,000 annually, or nearly 20

hours for each day period. I cannot visualize, in the

absence of extreme abuse in the time to make the weekly

exchanges that this number of hours would be required.

 

            The Port asserted in its footnote, page 55 that the 50%

standby pay for an officer on call after seven consecutive days

is no issue but has been incorporated in the new Agreement.

 

            For these reasons I set aside the Union proposal to provide

all members of the BDU with an assigned Port vehicle.

 

            D.        DECISION AND AWARD: TAKE HOME VEHICLE - BOMB DISPOSAL

UNIT  (Item 5).

 

            I decided and award that,

 

            There shall be no addition to the new Agreement at Article

XXI - Benefits to assign a take home Port of Seattle car to each

member of the Bomb Disposal Unit.

 

            XVIII. TAKE HOME VEHICLE:    CRIMINAL INVESTIGATION SECTION

(Item 6).

 

            A.        PROPOSALS

 

            The Union proposes to add a paragraph at the end of Article

XXI - Benefits of the new Agreement, as follows:

 

            The Port shall provide each officer in the Criminal

Investigation Section with an assigned take-home vehicle

for the duration of that officer's assignment in the

Criminal Investigation Section.

 

            The Employer proposes to retain the current practice and

status quo.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Union

            Among the ten detectives in the CIS, three now have

vehicles that each may take home and the other seven each have a

vehicle assigned to them, but without permission to take it

home. According to the Union, the vehicle should be taken home

by all of the detectives since special equipment is maintained

in each vehicle, equipment that a detective needs at the scene

of a crime. When the detective must go to the airport area to

obtain a vehicle, unnecessary delay results in the investigation

process. In addition, the detectives are stationed some two

miles from the airport, too far for walking distance to the

terminals, and vehicles are used to move to and from the airport

and their headquarters office. Vehicles are needed when

witnesses must be interviewed.

 

            The Union argued that the present system is inefficient.

Coming from home a detective must first go to the airport, and

this delay can endanger an investigation, the Union insisted.

It is important for the detectives to respond quickly to a crime

 

            It is for the speed in reaching a crime scene that other

police departments do allow vehicles assigned to detectives to

be driven to the detective's home. Having a car at home for a

detective is an enforcement tool, Lt Jensen asserted. Since the

three detectives on special task forces may take the cars

assigned to them to their homes, others should be permitted to

do so for the same reasons. The work of all detectives is very

much the same, the Union pointed out.

 

            Although the Port alleges it is expensive to allow cars to

go home, this cost is negligible, the Union claimed, and small

in relation to the benefits derived from allowing the cars at

the detective's home. Detectives need to be mobile and the

permission to take the care home is an essential ingredient of

that need, the Union contended. The arbitrator should accept

the Union proposal, it concluded.

 

            2 .        Employer

            The Employer contended that the seven detectives in the CIS

without permission to take cars home that have been assigned to

them is a practice that should continue without any changes in

the new Agreement. The three detectives, who do have cars to

take home work on special task forces, are located in separate

offices from the others and two of them have to go downtown or

to the port area. The seven detectives spend most of their time

t the airport, and in the event of a call out would more likely

than not go to the airport where their car is located. Most of

he work by these detectives occurs at the airport, or during

shifts when the detective may get his/her assigned car at the

airport to do witness interviews and other trips away from the

airport.

 

            The Employer pointed to the example of Lt Jensen about one

detective who had to drive past the crime scene, then come back

to the crime, and retrace his steps to get him private car

to return home. Under examination, Jensen acknowledged that he

was unaware of any impact on the investigation occurred in this

instance. The lieutenant could provide no other examples of

delay where the detective had to drive past the crime scene to

obtain his car at the airport with the required investigative

materials.

 

            The Employer asserted that it was willing to take a short

delay occasionally in the arrival of a detective or crime scene

investigator rather than incur the expense of providing

essentially commuting transportation for the members of the CSI.

Using the case of Lieutenant Jensen, the Port found that the

cost would be over $3,000 per year to provide him with a car

that could be taken home. In addition, detectives very

infrequently are required to report to the scene of a crime from

home to an investigation away from the airport, the Employer

pointed out. "

 

            According to the Employer in conclusion, "the Union's

proposal to provide take home cars for detectives should be

denied.

 

            C .       ANALYSIS

           

            I have concluded to leave the assignment of cars to

detectives unchanged under the new Agreement. I reached this

conclusion for the following considerations.

 

            First, a large proportion of crimes investigated by the

detectives are at the airport where their specially equipped

cars are kept (T 11, 72:17-23). Thus an assigned Port car at

home becomes essentially a "commuting" vehicle, going where the

officer would ordinarily go in his/her private vehicle. In

addition, a share of the work, such as some witness

interviewing, will be done during the shift of the employee when

that officer will already have a car.

 

            Second, no evidence indicated that the detectives were

called out a substantial number of times to areas other than the

airport where obtaining the assigned car and equipment at the

airport would not allow a relatively expeditious arrival at a

crime scene (T 11, 88:9 - 89:5; 91:16 - 92:8). Many crimes to

which detective go away from the airport occur during the

regular shift of the detective when a car is available.

 

            Third, other Police Departments do frequently assign

detectives take home cars, as Tacoma, for example. But in these

circumstances the detective has no concentration of locations of

the crimes as is the case at the airport. The detective may be

required to go any place in the entire City of Tacoma, and going

directly from home represents a more efficient operation than

going to a central location for equipment and transportation.

 

            Fourth, as Lieutenant Jensen and Deputy Chief Kimsey

explained, special circumstances, as a trip some distance from

the airport, or a very late night duty, supervisors allow the

detectives to take the car home and return it the next morning

under special circumstances, as a trip some distance from the

airport or very late night duty. According to Kimsey this

happens frequently, and the Department tries to be flexible in

this regard (T VI, 205:7-21; T 11, 74: 1-13; 85:13-18).

 

            Fifth, as Lieutenant Jensen computed with the aid of the

Port spokesman, the cost of assigning a take home vehicle to

each detective could be $3,000 or more per year, depending, of

course, on how far the detective lived from the airport (T 11,

70:11 - 71:25)

 

            On the basis of these considerations, the assignment of

take home cars to all detectives does not appear to improve

efficiency sufficiently in relation to additional cost to

justify the adoption of the Union’s proposal.

           

            D.        DECISION AND AWARD: TAKE HOME VEHICLES - CRIMINAL

INVESTIGATION SECTION            (Item 6).

 

            I decided and award that,

 

            There shall be no addition to the new Agreement at Article

XXI - Benefits to assign a take home Port of Seattle car to each

member of the Criminal Investigation Section.

 

XIX.    LIGHT DUTY. (Item 7).

 

            A.        PROPOSALS

 

            The Employer proposes to add Section 4 - Light Duty,

Article XV - Long Term Disability in the new Agreement, as

follows :

 

            Officers may be required to work light duty, consistent

with state law. If an employee is sick and unable to perform

his/her light duty assignment, the employee is required to use

accrued sick leave.

 

            State law provides at RCW 41.04.520--Disability leave

supplement for law enforcement officers and fire fighters--

Employee to perform light duty tasks.

 

            While an employee is receiving disability leave supplement,

the employee, subject to the approval of his or her treating

physician, shall perform light duty tasks in the employee's

previous department as the employer may require, with no

reduction in the disability leave supplement.

 

            The Union proposes to retain existing language in Article

XXII, Section 2 of the current Agreement that contains no

reference to light duty while on long term disability.

(Eliminate Section 4 on Light Duty, Article XV - Long Term

Disability, in the new Agreement; U 2, p 28).

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            The Employer contended that the Port had many duties that

could be performed by an officer on temporary light duty, in a

recovery stage from or during long term disability from regular

duties. Developing information of an historical nature, writing

procedure manuals and the like could readily be assigned and

done in a light duty status. The Port affirmed that it would

assign light duty only if the officer's attending physician

indicated the officer could do the designated light duty. In

addition, the Port insisted that an officer on light duty, if he

or she became ill, that sick leave benefits be use rather than

the supplemental benefits for long term disability.

 

            The Port argued that it is mandated to make the best

possible use of its resources. On occasion an officer will be

unable to perform all of the essential function of his/her

regular position. But under these circumstances the Port is

entitled to receive some value from that officer's training and

skills, to the extent reasonably consistent with the officer's

medical condition.

 

            The Union sought a clause in the new Agreement that

prohibited light duty work. The Employer seeks productive tasks

from an officer rather than simply have the officer stay at

home. The Port's position is stronger since it can more

effectively utilize its resources without personal disadvantage

to the officer.

 

            The Port's proposed light duty provision should be adopted,

the Port concluded.

 

            The Union opposed the clause on light duty assignments as

proposed by the Port. Aside from contending that the Port had

shown no reason to change the contract language, the Union

claimed that the language and practice of the current Agreement

allows an officer to decline to work light duty and simply

receive the duty disability payments. Even if the officer were

to do light duty work, the requirement to supplement the

officer's pay to equal his/her base pay is still required. On

this basis there is no need to charge any sick leave against the

officer's balances. Further, the Union contended that the Port

has not demonstrated that any comparable department has similar

light duty language. The Port has failed to establish a need to

change the existing contract language. The Union requests that

the Arbitrator decline to adopt the Port's proposal.

 

            I concluded that the new Agreement should contain a

provision with respect to light duty. The following

considerations led to this conclusion.

 

            First, underlying the individual employee/employer

employment relationship and contract is the obligation of the

employee to provide a 'fair day's work" in response to the

employer's assurance of a "fair day's pay." Here, if the

employee, who has been injured on the job and on a long term

disability, is able to provide some share of that 'fair day's

work" during his recovery period at the same time that the

employer provides the full "fair day's pay," the underlying

principle of the employment contract affirms that the employee

should be obligated to provide what work that he is able to do.

The employee should be subject to assignment to light duty

within the limitations imposed by his personal and attending

physician.

 

            Second, of course the collective bargaining agreement may

alter the underlying obligations of the employee and employer.

Although the Union alleged in brief at pp 35-36 that "the

current contract language and practice allows (sic) for an

officer to decline to work light duty and simply receive the

duty disability payments," I was unable to find any language

that in any expressed or ambiguous way permitted the employee to

decline expressly to work light duty. Article XXII and Appendix

made no reference to light duty work. If the current language

does so provide as the Union asserted, the Union's proposal in U

24, p 8 "that no officer be required to work light duty while

they are on duty disability" was not called for. No information

as provided on "practice," and I found none in the transcripts.

 

            Third, other jurisdictions among the comparables do provide

for the assignment of light duty in instances of long term

disability.  First, I could find no provision in the collective

bargaining agreements of any of the ten comparables that the

employer was denied the right to assign light duty work as

requested here by the Port. Second, among the ten comparables,

four made no mention of light duty by implication or expressed

language. Two agreements affirmed that officers on long-term

disability were subject to state law. As noted above state law

does provide at RCW 41.04.520 that employees receiving

disability leave supplement “shall perform light duty tasks.. .“

subject to the approval of his or her treating physician. The

remaining four agreements had some clearly implied or expressed

reference to light duty assignments (U 13, Bellevue, p 13; U 16,

Renton, Appendix D; U 17, Seattle, p 47 and 70, and also

Memorandum of Understanding, June 23, 2000, p 2, and Er Book 11,

Kent, p 16, Article 6 .7 - Light Duty) . These provisions and

circumstances of the ten comparables support the inclusion of

he light duty provision in the new Agreement.

 

            Finally, the contention made by the Port is a reasonable

one. It should make the best possible use of its resources.

Clearly an officer able to work on light duty, even part time,

provides some productivity compared to remaining off the job

entirely while in the latter stages of recovery from a duty

disability. For this reason, the practice of light duty

assignments is a common one across private industry generally.

 

            As for the use of accrued sick leave by an officer on

light duty, the principle is sound that normally when an officer

cannot perform his/her assigned job because of illness, that

employee would be expected to use accrued sick leave in order to

get paid for the time off. The same principle reasonably

applies to an officer that is assigned light duty, with one

caveat. As Kirk pointed out the use of accrued sick leave would.

apply only to those illnesses "unrelated to the light duty

injury” or condition (TV, 182:5-14).

 

            For these considerations and rationale, I was persuaded

that the new Agreement should contain the proposal of the Port

regarding light duty assignments and the use of accrued sick

leave for non-duty disability related illnesses and conditions

while on light duty.

 

            D.        DECISION AND AWARD: LIGHT DUTY (Item 7)

 

            I decided and award that the following paragraphs shall be

included in the new Agreement at Section 4 - Light Duty, Article

V - Long Term Disability:

 

            The Employer may require officers receiving a disability

leave supplement to work light duty, consistent with RCW

41.04.520 and other applicable law.

 

            If an officer is unable to perform his/her light duty

assignment by reason of an illness or injury unrelated to the

duty disability injury or condition, the officer is required to

se accrued sick leave.

106

 

XX.      RETIREES HEALTH AND WELFARE CONTRIBUTION (Item 8).

 

            A.        PROPOSALS

 

            The Union proposed that the Employer pay the $39.85 per

month premium that is now being deducted from the pay of active

employees in the bargaining unit for the RWT-Plus Plan, a plan

that provides medical coverage for retirees. Specifically, the

union ask that the following language be added as Section 5:

Retirees' Health and Welfare Plan, in Article XX - Teamsters

Health and Welfare Programs in the new Agreement:

 

            Effective January 1, 2000, the Port of Seattle shall

continue to pay to the Retirees' Welfare Trust the amount

necessary each month for participation in the RWT-Plus Plan

without any reduction or diversion of the officer's wages.

 

            The Employer opposes the addition of the above provision

and proposed that the practices under the current Agreement be

continued.      

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Union

            The Union offered several contentions in support of its

proposal. First, the Port agreed to an opener in the current

agreement in order to negotiate the RWT-Plus Plan, after the

Teamsters developed the retirees' health plan. The parties have

now incorporated the plan in the Agreement (U 1, p 56). Second,

the payment of the $39.85 premium for active employees by the

Employer is an important issue since many of the officers are

now reaching an age where early retirement will occur and these

persons require health plan coverage until each reaches an age

to be covered by Medicare. (The RWT-Plus Plan then becomes a

medicare supplementary plan). The Union suggested that the above

provision could be implemented by an offset in the wage increase

determined by the arbitrator.

 

            Third, the Union pointed out that the Port has already

agreed to pay in full the above premium for two bargaining units

represented by the Teamsters, the ID access/police specialists

and the bus drivers. In addition, the Port agreed to pay for

half of the premium for Captains and Lieutenants. Also, the

Port has offered payment of the full premium in a complete

package to the Police Communications Specialists.

 

            Finally, the Union acknowledged that no other police

department pays for retirees' health and welfare plans. At the

same time, according to its computations, the Port officers

receive so much less compensation than those in other

departments, that this contribution to the health and welfare

plan would tend to balance out the differences in compensation

between the Port's officers and officers in other departments.

 

            In all, the Union alleged that it makes sense for the Port

and its Police Department to be consistent with other groups

that work at the Police Department and accordingly, the Port

should pay the full amount of the $39.85 premium for the RWT-

Plus Plan for the police officers.

 

            2.         Employer

            The Employer pointed out that not one of the comparables

among either the Seattle Six or the smaller jurisdictions pay

for retirees' medical. The Union offered not one collective

bargaining agreement among police departments in any other

jurisdiction that the employer paid for retiree medical, even

though Mr Williams sits on the Board of Trustees of the

retirees' medical plan.

 

            Second, the Employer rejected the plan because of its

costs, not for "philosophical" reasons. Williams acknowledged

that the cost would double in the next seven years (T I, 158-

159). This is an amount that constitutes a very significant

increase given that the current premium represents about 1% of

the salary of police officers, the Port pointed out, a

contribution unjustified in relation to other benefits and

salary level enjoyed by the Port's police officers.

 

            The Port has agreed to include retirees' medical coverage

in two other bargaining units that represent about 10% of the

employees at the Port. This fails to represent a pattern, or a

trend, the Port argued. The Port did acknowledge that it had

agreed to pay for half of the retirees' plan premium for the

Captains and Lieutenants, but only in conjunction with a

significant change in work hours to the benefit of the Port and

in the context of a general adjustment of salaries and benefits

of these officers in relations to the sergeants and officers.

 

            Finally, the Port offered consideration of the Union's

proposal in the context of a wage award that recognizes the cost

of the retirees' health plan "and as part of an overall package

that allows the Port to reassign the drives work."

Reassignment of the drives work will impact the senior officers

who use its overtime for enhancing prospective retirement

benefits. The retirees' health coverage represents an offset.

Here the same arrangement should be made with the officers as

with the captains and lieutenants, and the employee pays half of

whatever is the cost of the retirees' plan.

 

            However, given the Union's failure to even offer any

evidence on this issue from any other jurisdiction, application

of the statutory factors augurs strongly for maintenance of the

status quo, the Port concluded.

 

            C.         ANALYSIS

 

            I have concluded that the Union proposal should be

implemented in part. I shall amend the provision offered above

to provide that the officers shall continue to pay one half of

the premium for the retirees' health plan, effective January 1,

2002. The following considerations led to this conclusion.

 

            First, in bargaining with the Union for other bargaining

units at the port, the Port has failed in each instance to

sustain its position to refuse to pay for the retirees' plan

premium of $39.85. The significance of these bargains is not the

proportion of employees at the Port who are covered by the

Employer's contribution to the retirees' health plan, but that

the Teamsters Union has been successful in obtaining this

concession from the Port as a part of the bargained package in

each prior case. For these units, the Union was free to use

whatever economic or bargaining tactics and pressure that were

available or needed.

 

            Second, the willingness of the Union to sacrifice wage

increases for the addition of Employer paid retirees' health

plan premium indicated a strong resolve to achieve this

provision in the Agreement (Un Br, p 38, fn 7) .

 

            Third, a fourth of the officers have 20 years of service or

more, and are or will soon be eligible for retirement (E 43-44).

This issue is a matter of some consequence to them, even though

a relatively new "benefit" available to employees generally.

 

            Combining these factors and circumstances, I concluded that

the Union would have argued long and hard, with substantial

staying power, to achieve some concession regarding Employer

payment of all or part of the premium for the retirees' health

plan. I recognize that other jurisdictions among police

departments do not provide this benefit at the employer's

expense at this time. But the "comparables'" guidelines and

standards of the statute are not absolute in determining wages,

hours and conditions of employment. I submit here that the

Union's interest in this matter would have been sufficiently

strong in an unrestricted 'free market" that the Port would have

conceded and thus may well be the “break-thru“ with regard to

this benefit among police and other public agencies.

 

            I shall make the change in who pays the premium for the

RWT-Plus Plan effective on January 1, 2002 . I do so on the

basis of the current level of compensation of the officers and

other changes made in the total economic package in the new

Agreement.    

 

            D.        DECISION AND AWARD: RETIREES‘ HEALTH AND WELFARE

CONTRIBUTIONS (Item 8).

 

            I decided and award that Section 5 - Retirees’ Health and

Welfare Plan in Article XX - Teamsters Health and Welfare

Program of the new Agreement shall provide as follows:

 

            The Port of Seattle shall continue to pay to the Retirees’

Welfare Trust the amount necessary each month for participation

in the RWT-Plus Plan and shall continue to deduct that amount

net monthly wages of each eligible officer, except,

January 1, 2002, the amount to be deducted from the

officers' wages shall be only one half (1/2) of said monthly

amount.

 

XXI     PACIFIC COAST BENEFIT TRUST CONTRIBUTIONS:          (Item 9)

 

            A.        PROPOSALS

 

            The Union proposes to incorporate in Article XXI -

Benefits, Section (n) - Pacific Coast Benefit Plan, paragraph

one, as follows:

           

            Effective January 1, 2000, the employer contribution shall

be $1.20 per hour.

 

            Effective January 1, 2001, the employer contribution shall

be $1.25 per hour.

 

            Effective January 1, 2002, the employer contribution shall

be $1.30 per hour.

 

 

 

The Employer rejects the proposal of the Union and proposes

that the employer contribution shall remain at $1.15 per hour

for the duration of the new Agreement.

 

            B .       CONTENTIONS IN SUPPORT OF PROPOSALS

 

            The Union offered two arguments in support of its proposal.

First, the five cents per hour increase is the continuation of a

well-established bargaining history of doing so. The parties

should continue to do so. Second, the increase in the

contribution is required to keep the value of the retirement

fund from decreasing. If the contribution is left constant,

inflation will devalue the funds and the contribution

specifically, at the rate of three or four percent per year, the

Union contended. It urged acceptance of the proposal above by

the arbitrator.

 

            The Employer contended that the Port officers now receive a

better retirement/pension program than any of the ten

comparables, and accordingly no increase is justified. Noting

that the Port pays 6.2% of salary in lieu of social security and

that it pays $1.15 per hour to the PCBT, it contributes $475 per

month plus $1.15 per hour for all overtime hours. The

contribution to PCBT is approximately $215 per month, according

to the Employer. None of the Seattle Six exceed the total

contribution of the Port to pension and social security. But in

addition, the smaller jurisdictions contribute only the amount

of social security, except for Kent that augments retirement by

a 2% of the base wage contribution. The Employer alleged

further that "many of them (jurisdictions) require ... a

matching contribution from the employee" to obtain the employer

contribution. Here no match is required and the contributions

vest fully immediately, the Port pointed out.

 

            No reason exists for increasing the pension contribution

other than "wanting more of seemingly everything" for the Union

ailed to provide any evidentiary or factual basis to support

their request. The Union's proposal should be rejected, the

Port concluded.

 

            C.        ANALYSIS

 

            I concluded to deny the proposal of the Union. I do so on

the basis primarily of the argument made by the Employer that

the amount of the pension contributions as a whole at the Port

now exceed amounts contributed to retirement and pension program

in each of the ten comparable jurisdictions. Renton contributes

the most at better than 9% of the employee's wage but the Port's

contribution of 6.2% plus $1.15 per hour exceeds 10% of base

wages (E 74-87).

 

            In addition, as argued above in the discussion section on

the "Supplemental Compensation Elements," the compensatory level

f the Port officers exceeds the average compensation among the

ten comparables. That circumstance militates against acceptance

of the Union's proposal here to increase the hourly contribution

rate to the PCBT.

 

            D.      DECISION AND AWARD: PACIFIC COAST BENEFITS TRUST

CONTRIBUTION  (Item 9).

 

            I decided and award that Section (n) - Pacific Coast

Benefit Plan in Article XXI - Benefits in the new Agreement

shall read as follows:

 

            Effective January 1, 2000, the employer contribution shall

be $1.15 per hour.

 

            (As tentatively agreed by the parties) : The Union reserves

the right to convert to an alternate tax deferred plan that

would provide for individual direction of investment

alternatives at any time during the term of this contract upon

sixty-days notice to the Port of Seattle, provided that the

change would involve no additional cost to the Port of Settle.

 

 

XXII.   ELIGIBILITY FOR CLOTHING ALLOWANCE.   (Item 10).

 

            A.        PROPOSALS

            The Union proposes that the three officers assigned to the

Administrative Section should be eligible for a clothing

allowance as those officers in the Criminal Investigation

Section. The Union would included the following provision in

Section 3 - Clothing Cleaning Allowance in Article XXIV -

Uniforms and Equipment in the new Agreement:

 

            Effective upon the month following ratification, the Port

shall pay a clothing/cleaning allowance of seventy dollars ($70)

per month to police officers assigned to the Criminal

Investigation Section and the Administrative Section.

 

            The Employer proposes that the officers

Administrative Section be given no clothing/cleaning

as is the current practice.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Union

            The Union noted first that the officers in the Criminal

Investigation Section received a clothing/cleaning allowance of

allowance $70 per month. Three remaining officers in the Administrative

Section, Fleet and Supply Officer, Research and Development

Officer, and the Training Officer, do no receive any allowance

although all are provided a uniform as members of the bargaining

unit. The latter three officers are subject to the same dress

code as the detectives, and should therefore receive the same

allowance, the Union asserted. Officers do have an expense to

meet the dress code and to keep clothes cleaned. The addition of

three more officers to those who receive the allowance is a

small expense.

 

            According to the Union, a majority of other jurisdictions

provide a clothing/cleaning allowance for plainclothes officers

including those in similar positions to the three above. The

Union asserted “there is no reason to treat the officers in the

Administrative Section any differently than the officers in

other Administrative Sections.“

 

            Although these offices are given uniforms, it is not

practical to wear them in their present positions with body

armor and other equipment. These officers dress in accord with

the civilians and other Port personnel with whom they interact,

and should be given a clothing/cleaning allowance as other

officers who do the same thing.

 

            2.         Employer

            The Employer argued that the allowance requested by the

Union should be denied. First, the Employer pointed out that

the $70 per month or $840 per year was substantially greater

than that received by any similarly situated officers in the

comparable jurisdictions. Other jurisdictions average about

$400 per year.

 

            Second, the Employer contended that the allowance for the

detectives was bargained specifically with the fact in mind that

the three positions in the Administrative Section would not be

included. There is a significant difference in the duties of

those individuals who are in the Criminal Investigation Section

and of those in the Administrative Section, the Port claimed.

The former have duties in undercover, attending court, and

appearing in a wide variety of circumstances where suits and

dress are essential. The three officers in the Administrative

Section can meet the dress code with Dockers and a polo shirt.

 

            Third, the clothes that the three wear to work can be used

for all sorts of casual wear unrelated to the Department, the

Employer asserted. The Port concluded ‘it should not be

expected to provide an additional $840 in compensation (to the

three Administrative Section officers) so these can buy Dockers

and polo shirts ." The casual attire these employees are allowed

to wear should not trigger a substantial payment by the Port to

them. "The Union proposal should be rejected by the Arbiter."

 

            C.        ANALYSIS

 

            Although there is merit in what the Port argues about

compensation for normal casual attire in the Administrative

Section, I was persuaded that these three officers should be

provided with some benefit with regard to clothing and cleaning.

Seven of the ten comparables do provide a clothing/cleaning

allowance for plainclothes officers whether detectives or used

in administrative positions as indicated here. Except for King

County, cleaning is provided among the jurisdictions. In

addition, although the officers in the Administrative Sections

do not meet with the "civilian" public as much as those in the

Criminal Investigation Unit, they are not entirely isolated.

Wearing the officer's uniform could be done occasionally. Good

reasons were offered on why this would not be very practical for

one at a desk job, primarily, because of being fully armed and

carrying the usual equipment.

 

            Although I conclude that the three officers should receive

some allowance here, I see no reason to provide the full $840

per year under the circumstances. The average received in

clothing/cleaning allowances for plainclothes officers among the

ten jurisdictions is approximately $360 per year. Accordingly,

I shall incorporate in the Agreement below an allowance for the

three officers in the Administrative Section of this amount,

primarily as a cleaning allowance and only nominally for the

purchase of clothes uniquely essential for their positions.

 

            D.        DECISION AND AWARD: ELIGIBLY FOR CLOTHING ALLOWANCE

Item 10) .

 

            I decided and award that the following provision shall be

incorporated in the new Agreement as Section 3 -

Clothing/Cleaning Allowance, in Article XXIV - Uniforms and

'Equipment :

 

            The Port shall continue to pay a clothing/cleaning

allowance of seventy dollars ($70) per month to police officers

assigned to the Criminal Investigation Section.

 

            Effective on October 1, 2001, the Port shall pay a

clothing/cleaning allowance of ninety dollars ($90) at the end

of each calendar quarter thereafter to police officers assigned

to the Administrative Section, namely the Fleet and Supply

Officer, the Research and Development Officer, and the Training

Officer .

 

XXIII.             BILL OF RIGHTS    (Item 22)

 

            A.        PROPOSALS

           

            The Employer's proposal and the current provisions on the

officers "Bill of Rights" have been attached to this section.

The Union proposes to continue the current language.

 

            The Port has proposed several nominal language changes to

the current provision, primarily for clarification and

simplification, to which the Union raised no specific objection

other than that the changes were relatively insignificant and

unnecessary. In addition, the Port proposed three substantive

changes to which the Union strongly objected.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Employer

            Although acknowledging that the Bill of Rights had been

around for a number of years, the Port insisted that it needed

to be brought 'into the 21st   Century." The Port noted, however                                                             that the investigation of police officers is a matter that has                                                                   received substantial public scrutiny particularly in recent                                                                                years. This increased public interest brought a review of the

Bill of Rights to assure that "the department, for its own well

being and survival, has a fair and impartial internal

investigation process." Thus the first change proposed by the

Port, it alleged, sought to point the investigative process in

that direction specifically, calling to attention that the

process not only protects the rights of officers, but takes into

consideration the interests of the public and the department as

 

            For these reasons, the Port proposed to add to the Preamble

the following sentence:

 

            In addition to ensuring the rights of officers are

protected, the parties recognize that the process must protect

the interests of the public and the Department.

 

            A second change was proposed for the Preamble as well.

This change removed the requirement that the investigation must

be performed by "superior officers," and allowed the Port Police

Department directly to determine who would do the investigating.

Here the Port alleged that an investigation should be undertaken

immediately in some instances by the supervisor present rather

await the arrival and briefing of a "superior officer ." In

addition, in such matters as a sexual harassment charge a

specialist in that area rather than a superior officer of the

Department might more appropriately undertake the investigation.

The Port should not be limited to who the Chief determines

should conduct a particular investigation.

 

            The relevant sentence in the Preamble would now read:

 

            These questions often require immediate investigation ...

by the Port Police Department.

 

            A third change is proposed for the first paragraph in

Section B. The Port argued that the internal investigative

procedure should be reserved for matters relatively significant.

Such "minor" issues on conduct as late to work and absences can

be discussed between supervisor and employee without getting

into formal procedures of notification, etc. According to the

Employer, "the internal investigation process should be

applicable to investigatory matters that could reasonably lead

to the officer's suspension and/or termination." The proposed

clause amends the present contract language by the addition of

the first sentence and by eliminating the words "non-criminal"

but adding 'such" at the beginning of the second sentence in the

following paragraph:

 

            B.        The following procedures shall apply to all

administrative (i.e., non-criminal) investigations of misconduct

that, if proved, could reasonably lead to a suspension without

pay or termination for that officer. In ... such cases the

employee shall be informed in writing of the nature of the

investigation and whether the employee is a witness or suspect.

 

            The fourth change offered by the Port concerns the

additional two paragraphs in Section B. The Port has combined

these into a single one that states as follows (deleted language

is marked through; underlined is new language):

 

If an employee is a suspect, the employee shall be provided

with, ( a copy of the complaint and related statements before the

employee is required to make a written statement.  Such

information shall include the name, address, and any other) that

information necessary to reasonably apprise the employee of the

general allegations of such complaint. Except in unusual

situations, this information will include the name of the

complaining party. The above applies in cases of misconduct and

violations of department rules and regulations. When the

internal Investigation Section is assigned to investigate non-

criminal cases, the accused shall be notified within five (5 )

working days.

 

            The Employer pointed out that the old language does not

require disclosure of the complaint and related statements to

the officer unless the Port requests a written statement from

he officer. According to the Port, this implies that

interrogation can take place without providing the officer with

any information simply by interrogating the officer without

requesting a written statement. Although this may have been the

means whereby the parties intended that less serious matters

would be handled without a written statement, the Port argued

that all 'significant" interrogation should be treated

similarly, regardless of whether a written statement is

requested. According to the Port, "a guideline and procedure

should be applicable to all investigations that balances the

interests the Port and the officer in a fair and logical

manner. "

 

            The Port's change eliminates the requirement to provide the

officer with the name and address of the complainant and a copy

of the complaint. The Port contends that in some circumstances

good reason exists not to disclose the name of the complainant

such as one officer filing a complaint with the belief that

another was engaging in fraudulent activity. Of course, in

cases of anonymous complaints the Port must investigate but

cannot provide the name of the complainant. Ordinarily, except

for unusual circumstances, the name should be provided the

officer.

 

            The Port objects to providing the address of a complainant.

The Port believes that such a provision will "chill" the

likelihood of a person making a complaint. The address

information leaves open the opportunity for the complainant to

e harassed or otherwise suffer recrimination. According to the

Port, the public should be encouraged to provide information

bout Port employees, both kudos and complaints.

 

            In addition, the Port argued that the current language

provides unnecessarily broad requirements in the provision of

information to an officer prior to an investigative interview

with that officer. Information provided should not be 'all

related statements, " but rather should only provide that

information necessary to reasonably apprise the employee of the

general allegations of the complaint. Some offices currently

believe that the language now means the Port gives the officer

all of the information that it has. This is unreasonable, the

Port argued. At times it is necessary to hear what an officer

as to say prior to an opportunity for the officer "to frame his

or her answer." Of course, an officer must be apprised of the

general nature of the allegation(s) so that he can prepare for

the interview. The language proposed by the Port is found in

other agreements, such as King County, Tacoma, Everett, and is

fully supported by the comparables, the Port asserted.

 

            Three final changes are minor in nature, according to the

Port. Section C contains an inconsistency on when an

interrogation should be undertaken, when the officer is on duty,

or during the daytime. The Port offered the following language:

 

            C. Any interrogation of an employee shall be at a

reasonable hour. (preferably when the employee is on duty unless

the exigencies of the investigation dictate other wise.  Where

practicable, interrogations shall be scheduled for the daytime.

 

            Further Sect ion F has been modified regarding

"intimidation." The Section reads as follows:

 

            F.         The employee shall not be subjected to any offensive

language, nor shall he/she be threatened with dismissal,

transfer, or other disciplinary punishment as a guise to attempt

to obtain his/her resignation, (nor shall he/she be intimidated

in any other manner).  No promises or awards shall be made as an

inducement to answer questions.

 

            The Port contended that this phrase "nor shall he/she be

intimidated in any other manner," is redundant in part and that

it raises an issue of subjective feeling on the part of the

employee. According to the Port, there is no way for it to

guarantee that an employee will not feel intimidated even in the

simple process of being interviewed. This phrase should be

deleted.

 

            The parties agreed to a change in Section G that deletes

unnecessary and redundant language. It now reads:

 

            G. The Port will comply with any applicable state or

federal restrictions that prohibit the use of a (it shall be

unlawful for any person, firm, corporation, Port Districts of

the State of Washington, its political subdivision or municipal

corporation to require any employee covered by his/her Agreement

to take or be subjected any) lie detector or similar tests as a

condition of continued employment.

 

            The final change proposed by the Employer is an addition to

Section K, as shown by the underlined language.

 

            K. All case documentation shall remain confidential within

the Internal Investigation Section and to the Chief of Police,

and any other member of Police or Port management with a

reasonable need to know. Only cases that are classified as

sustained shall be forwarded to the Department Administrative

file as well as a conclusion of findings to Human Resources for

inclusion in the employee’s personnel records.

 

            The present language is unduly restrictive on who should

receive the results of an investigation, according to the Port.

or example, even the Deputy Chief is not allowed to see the

results of an investigation. The results should be available to

any with in the Port of Seattle who have a reasonable “need to

know,“ the Port asserted. Each situation will be different and

no intent is involved here that the results of an investigation

ill be broadcast, only that certain people at various times may

well have a proper reason to know the results of the

investigation. Interests of officers will be protected, but

this provision “fairly balances the needs of all parties,” the

Port concluded.

 

            The Port requested that the Arbiter adopt its Bill of

Rights proposal.

 

            2.         Union

            The Union raised three major objections to the proposed

changes of the Port. Initially the Union pointed out that the

Bill of Rights had existed in its present form for approximately

twenty years without a problem. On this basis alone, the Bill

of Rights should be retained.

 

            The first objection concerned the deletion of the sentence

“a copy of the complaint and related statements before the

employee is required to make a written statement.“ This

sentence ensures that the officer have sufficient information

about the incident so that he or she can respond accurately to

the allegations by receiving a copy of the complaint and related

statements. The Union asserted that all of this information was

essential since the officer would have many contacts that day,

and a real risk existed that the officer would misunderstand the

allegation(s) . The investigation of officers is a very serious

matter, can threaten an employee's career and affect discipline,

promotions, appointments and related matters.

 

            The Union pointed out that these documents need only be

presented when they exist and when an officer is being required

to make a written statement. The Department can conduct

investigations without a signed complaint, and in these

instances of anonymous complaints, the Department has

effectively supplied the officers with sufficient information.

There has been no problem, and therefore there is no reason to

change the language.

 

            The Union contended that the accused officer should be

provided both the name and the address of the complainant. When

the information exists there is no reason not to provide it, the

union concluded.

 

            Although the Port asserts that providing the name and

address of the complainant may chill complaints by citizens who

fear reprisal, they can make anonymous complaints. No evidence

indicated that any officer had ever misused the information on

name and address of a complainant, or that any citizen had ever

expressed any concern about that possibility. Clearly there is

legitimate reason for the officer to know the name and address

of the complainant. The Officer should be able to have legal

recourse against the complainant if the allegations are found to

be frivolous and yet may have affected the officer's career

adversely.

 

            According to the Union, the Port must be required to

provide a copy of the complaint, if it exists, and the related

statements and relevant information. The Officer is entitled to

identify the complainant and respond accurately to the

allegations. These rights are basic in a democratic society and

no reason why they should not be afforded to police officers.

The present language in Section B should be retained, the Union

concluded.

 

            The third and final objection of the Union applied to the

deletion of the phrase 'be intimidated in any manner" from

Section F. Although the Department pointed out that all

investigations were inherently intimidating, it could not

promise that an officer would not feel intimidated. There has

been no problem by an officer asserting intimidation. Further,

the language creates a standard that would have to be proven,

rather than a mere subjective feeling of being intimidated. No

remedy is specified so, according to the union, the language

becomes symbolic rather than anything else. The Port's proposal

raised suspicion among the officers that the Department wanted

flexibility to be able to engage in investigations that are

oppressive and intimidating. This is a wrong message. The

language of this section should remain unchanged.

 

            The Union urged the arbitrator to retain the existing

language in the Bill of Rights.

 

            C. ANALYSIS AND DISCUSSION

 

            1. Preliminary Considerations

            A collective bargaining agreement must provide a clear

balance between the rights of management to manage, on one hand

and the rights of employees to an objective, fair and just

treatment regarding their conduct on the other. Obviously the

right to manage includes directing, correcting, and even

disciplining employees when necessary. And at the same time,

the employees must be protected with adequate safeguards against

arbitrary and capricious decision making by employer

representatives.

 

            An integral part of balancing these rights includes the

process and procedures for investigating and disciplining

employees. Even though there have been no "problems" yet at the

Port of Settle, the rights of employees, more than in any other

area, deserve procedural protection by advanced preparation and

concern for the potential problems of biased and arbitrary

treatment. The Employer has wisely recognized this need.

properly here it seeks to clarify and amplify its obligations

and responsibilities by revisions to a document with some

ambiguities, redundancies, and needed improvements in defining

the rights of both the employee and the employer. Age alone

cannot guarantee the appropriateness of the processes and

procedures in a Bill of Rights.

 

            For the most part I have found the proposals of the Port in

modifying language in the Bill of Rights to represent

clarifications and improvements that redound to the benefit of

both the Employer and the members of the bargaining unit. Most

of these were not discussed by the Union and no objections were

raised in testimony (T 11, 146-47 ).  In considering the

employer's suggestions below, I have set forth only a few

comments regarding those changes in the Bill of Rights to which

the Union raised little or no specific objection. However, the

main substantive difference between the parties concerns what

information shall be provided to an employee before the employee

is initially interviewed regarding a complaint or allegation of

misconduct.

 

            2.         "Uncontested" Language    

            There were six nominal language changes proposed by the

Port to which the Union made no comment in brief, and only

indirectly in testimony. For the most part the contentions and

statements by the Employer set forth above were reasonable and

persuasive that the changes should be made, even though in most

instances the substance of the section of the Bill of Rights was

left intact. I have accepted the following changes and shall

incorporate them in the final version of the Bill of Rights.

 

            1.         In the preamble, add the sentence on the "interests of

the public and the Department.''

 

            2.         Remove reference to investigation being done only by

"superior officers" in preamble.

 

            3.         In first paragraph of B, application of procedures in

Bill of Rights only when serious matter involved likely to lead

to suspension or termination.

 

            4.         Removal of inconsistency in Section C, setting

interrogation at "a reasonable hour."

 

            5.         Confining compliance with state and federal law re lie

detector to the Port only, in Section G.

 

            6.         Distribution of results of investigation to any with a

"reasonable need to know," in Section K.

 

            Some objection to distributing the results of an

investigation outside of the Department was implied in the

testimony of Officer LaBissoniere who affirmed that at

negotiations the Union had opposed including the Executive

Director of the Port as one who could receive an investigative

report (T 11, 149:4-14). What was implied was to confine

results solely within the Department.

 

            It is understandable the officer involved and the Union

wish to reduce the distribution of any adverse report as

much as possible. At the same time, legitimate reasons exist

for senior management to know what is going on inside the

organization it is to direct. The Police Department is not

autonomous and is a part of the Port of Seattle. Senior members

of the Port‘s administration are responsible for what happens in

the Police Department even though the Chief is the immediate

executive officer and head of the Department. In addition, in

specialized circumstances, Human Relations and Labor Relations

personnel may need to know as well.

 

            The proposal of the Port in this instance is a common one,

that reports are distributed to those with a “reasonable need to

know.” The Chief should be able to determine with good reason

and without being arbitrary or capricious who should receive an

adverse report or be provided with knowledge of disciplinary

action about an officer.

 

            3.         Intimidation

            I concurred also in the Port’s proposal to eliminate the

words “nor shall he/she be intimidated in any other manner” from

Section F. These considerations led to this conclusion.

 

            First, the Port argued correctly that the phrase is

redundant in part. Clearly proof of intimidation in

investigation would reasonably come via threats, offensive

language and promises of rewards or punishments. The inclusion

of the above phrase raises issues of subjective concern on the

art of the employee being investigated, matters to be resolved

primarily by recourse to those things already specifically

prohibited during the investigation by the other language in the

Section. The Union recognized this characteristic of the phrase

when it claimed that the phrase created a standard that would

have to be proven, and not the mere assertion of a subjective

feeling of being intimidated.

 

            Second, at the same time feelings cannot always be ignored

and their assertion do represent subjective evaluations. The

contention of the Port has merit that the fact all internal

investigations are inherently intimidating, all investigated

officers could claim some feelings of intimidation, a burden on

the Port that it has no way to overcome if it is to fulfill its

obligations of investigating complaints.

 

            I cannot confirm how officers viewed this proposal of the

Port. By eliminating this phrase, the Union asserted that some

officers were suspicious of a desire by the Port to gain

flexibility to be able to engage in investigations that are

oppressive and intimidating. Given the language of the Section

above, I find this suspicion unfounded. The Section clearly

prohibits any conduct by interrogators to intimidate officers

being investigated. No testimony or other evidence indicated

any bad faith on the part of the Port in proposing the removal

of this phrase from Section F.

 

            For these reasons I shall affirm below the Port's proposed

deletion of "Nor shall he/she be intimidated in any other

manner" from the language Section F.

 

            4.         Employer's Release of Information

            The Agreement provides in its current form that when an

employee is considered a suspect and prior to interviewing that

employee, the Port must provide the employee with (1) a copy of

the complaint; (2) any related statements; (3 ) name and address

            of complainant; and (4) "any other information necessary to

reasonably apprise the employee of allegations of such

complaint." As testified to by both Officers LaBissoniere and

Monohan, the Union believes this language means that the

employer must disclose all information that it has to the

suspect employee prior to the interview (T 11, 124:14-17; I,

192:9-24; 203:24 - 205:l). On the other hand the Port's

proposal provides "that information necessary to reasonably

apprise the employee of the general allegations of such

complaint" and, except in unusual situations, the name of the

complainant would be included.

 

            Thus the difference between the Union and the Port arises

over whether all information should be given to the employee,

including name and address or only information required to let

the employee know the allegations, including the name of the

complainant in most instances.

 

            I found the arguments in support of the need for "all the

information" before an investigative interview to be weak and

unpersuasive. Although police officers are busy employees, any

action or any failure to act of sufficient importance to make

the employer consider a suspension or termination of the

employee is a matter that a reasonably alert individual would

not forget. And if the officer were uncertain from the

statement of the allegations from the employer in the absence of

"all the information," the interview demands only the honesty of

the respondent. If he/she gives the best and most complete

answers possible, nothing more can be expected.

 

            The information to provide to a prospective interviewee

depends primarily upon the objective of the interview. At least

two objectives are discernible in the various versions of the

Bill of Rights among the agreement in the ten comparable

jurisdictions. (See Tacoma, U 18, Sections 32.1, 32.7 and

On the one hand, a complaint arises that names an

employee. That employee is usually referred to as a "suspect."

Therefore it is incumbent upon the employer to investigate to

determine if misconduct or a violation of the rules and

regulations of the employer occurred. An interview of the

"suspect" under these circumstances would generally be referred

to as an "investigative interview" with advance knowledge that

the employee is a "suspect" and that discipline could result

from the action and or inaction of the employee being

investigated.

 

            On the other hand, once an employer determines that

misconduct has resulted and that discipline would ordinarily be

imposed, the employee is advised that his behavior is a basis

for discipline, In effect, the employee is charged with

misconduct. But before discipline is administered, the employer

holds a "disciplinary interview" or 'hearing" and provides the

employee with the full opportunity to defend him/herself against

the evidence upon which the employer would rely to sustain any

discipline.

 

            The current language in the Bill of Rights is ambiguous

with regard to which of these interviewing situations are

involved. What the Employer's proposal does is to make clear

that the interview of the "suspect" is an "investigative

interview, '' and not a "disciplinary interview." As to the

former, seven of the ten comparables supply information to the

"suspect" prior to the investigative interview in terms

identical to or similar in substance to that proposed by the

Employer here. These are Everett (E 222, Section 8.1.1.1);

King County (E 213, Art 19); Tacoma (E 216, Section 32.1);

Renton (CBA, Art 15.B.5, p 23); Auburn (CBA, Art 18.l.e, p 17);

Federal Way (CBA, Art 13.2.b, p 13); and Kent (CBA, Art 1.1.D, p

30). The expressions used are "provide in writing of the

allegation of such complaint" (Auburn); "employee informed of

the nature of the matter in sufficient detail to reasonably

apprise him/her of the matter" (Federal Way); "inform in writing

the nature of the allegations" (Everett); 'apprise in writing of

the allegations of such complaint 24 hours before interview“

(Renton); “before interrogation informed of the nature of the

matter in sufficient detail to reasonably apprise him of the

matter“ (King County) ; "if suspect, . . . told nature of the

complaint and identity of the complainant” (Tacoma) ; and finally

in the Kent agreement, if a suspect, advise who is complainant

or victim, what took place, where and when.

 

            Although two of the above jurisdictions (Tacoma and Kent)

contain requirements in their agreements to disclose the name of

the complainant, only one agreement among the ten comparables

requires that the address of the complainant be disclosed to the

employee prior to the interview. The current provisions among

the comparables were sufficient to ignore the Union‘s claim that

the address of the complainant should be disclosed prior to the

investigative interview. But in addition, the contention that

the complainant‘s address was needed to allow the employee to

proceed with suit against a complainant with a frivolous

complaint ignores the timing issue. But no basis exists to have

the address before the complaint has been investigated and the

employer reaches some decision regarding the validity of the

complaint. And if the employee was exonerated because of a

frivolous complaint, I submit that “damages” would be hard to

obtain.

 

            On the basis of the above considerations, findings of fact

and rationale, I concluded that the proposed language of the

employer in the second paragraph of Section B clarifies and

improves that section of the Bill of Rights and should be

adopted, as follows:

 

            If the employee is a suspect, the employee shall be

provided with that information necessary to reasonably apprise

the employee of the allegations of such complaint. Except in

unusual situations, this information will include the name of

the complaining party.

 

            D.        DECISION AND AWARD: BILL OF RIGHTS

 

            I decided and award the following modifications, revisions

and amendments to the Bill of Rights for inclusion in the new

Agreement:

 

            In the Preamble, begin on line six as follows:

... questions often require immediate investigation by the Port

Police Department. In addition to ensuring the rights of

officers are protected, the parties recognize that the process

must protect the interests of the public and the Department. In

an effort to insure that these investigations are conducted in a

manner that is conducive to good order and discipline, the

following guidelines are promulgated:

 

            A.        (No change).

 

            Replace Section E with the following:

 

            B.        The following procedures shall apply to all

administrative (i. e. - non-criminal) investigations of

misconduct, which, if proved, could reasonably lead to a

suspension without pay or termination for that officer. In such

cases the employee shall be informed in writing of the nature of

the investigation and whether the employee is a witness or

suspect .

 

            If the employee is a suspect, prior to an investigative

interview the Port shall provide the employee with that

information necessary to reasonably apprise the employee of the

allegations of such complaint. Except in unusual situations,

this information shall include the name of the complaining

party. The above applies in cases of misconduct, and violations

of department rules and regulations. When the International

Investigation Section is assigned to investigate non-criminal

cases, the accused shall be notified within five (5) working

days.

 

            Replace Section C with the following:

 

            C.        Any interrogation of an employee shall be at a

reasonable hour.

 

            D and E. (No change)

 

            Replace Section F with the following:

 

            F.         The employee shall not be subjected to any offensive

language, nor shall he/she be threatened with dismissal,

transfer, or other disciplinary punishment as a guise to attempt

to obtain his/her resignation. No promises or awards shall be

made as an inducement to answer questions.

 

            Replace Section G with the following:

 

            G .       The Port will comply with any applicable state or

federal restrictions that prohibit the use of a lie detector or

similar tests as a condition of continued employment.

 

            Replace Section K with the following:

 

            K.        All case documentation shall remain confidential within

the Internal Investigation Section and to the Chief of Police,

and any other members of Police or Port management with a

reasonable need to know. Only cases that are classified as

sustained shall be forwarded to the Department Administrative

file as well as a conclusion of findings to Human Resources for

inclusion in the employee's personnel records.

 

            L.         (No change) .

 

 

                                                   PORT OF SEATTLE PROPOSAL

 

                                                                 APPENDIX B

                                                POLICE OFFICERS’ BILL OF RIGHTS

 

            All employees within the bargaining unit shall be entitled to protection of what shall hereafter

be termed as the “Police Officers’ Bill of Rights” which shall be added to the present Rules

and Regulations of the Port Police Department. The wide ranging powers and duties given

to the department and its members involve them in all manner of contacts and relationships

with the public. Of these contacts come many questions concerning the actions of members

of the force. These questions often require immediate investigation by superior officers

designated by the Chief of the Port Police Department. In addition to ensuring the rights of

officers are protected, the parties recognize that the process must protect the interests of the

public and the Department. In an effort to insure that these investigations are conducted in a

manner which is conducive to good order and discipline, the following guidelines are

promulgated:

 

A.        The police officers covered by this agreement do not waive nor will they be deprived of

any of their Constitutional or Civil Rights guaranteed by the Federal and State Constitution

and Laws, afforded any citizen of the United States.

 

B.        The following procedures shall apply to all administrative (i.E. - non-criminal)

investigations of misconduct which, if proved, could reasonably lead to a (suspension) without

pay or termination for that officer. In non-criminal such cases the employee shall be informed

in writing of the nature of the investigation and whether the employee is a witness or suspect.

 

            If the employee is a suspect, the employee shall be provided with a copy of the

complaint and related statements before the employee is required to make a written

statement.

 

            (Such information shall include the name, address, and any other) that information

necessary to reasonably apprise the employee of the general allegations-of such complaint.

Except in unusual situations, this information will include the name of the complaining party.

The above applies in cases of misconduct, and violations of department rules and

regulations. When the Internal Investigation Section is assigned to investigate non-criminal

cases, the accused shall be notified within five (5) working days.

 

C.        Any interrogation of an employee shall be at a reasonable hour, preferably when the

employee in on duty unless the exigencies of the investigation dictate otherwise.  Where

practicable, interrogations shall be scheduled for the daytime.

 

D.        The interrogation (which shall not violate the employee's constitutional rights) shall

take place at a Port of Seattle Police station facility, except when impractical. The employee

shall be afforded an opportunity and facilities to contact and consult privately with an attorney

of the employee's own choosing and/or representative of the Union before being

interrogated.

 

            An attorney of the employee's own choosing and/or a representative of the Union may

be present during the interrogation, but may not participate in the interrogation except to

counsel the employee.

 

E.         The questioning shall not be overly long and the employee shall be entitled to such

reasonable intermissions as he/she shall request for personal necessities, meals, telephone

calls, and rest periods.

 

F.         The employee shall not be subjected to any offensive language, nor shall he/she be

threatened with dismissal, transfer, or other disciplinary punishment as a guise to attempt to

obtain his/her resignation, nor shall he/she be intimidated in any other manner.  No promises

or awards shall be made as an inducement to answer questions.

 

G.        The Port will comply with any applicable state or federal restrictions that prohibit the

use of a ---  It shall be unlawful for any person, firm, corporation, Port Districts of the State of

Washington, its political subdivision or municipal corporation to require any employee covered by

his/her Agreement to take or be subjected to any lie detector or similar tests as a

condition of continued employment.

 

H.        An employee shall be permitted to read any material affecting his/her employment

before such material is placed in the employee's personnel file, and an employee shall be

allowed to rebut in writing material placed in his/her personnel file. Such written rebuttal shall

also be included in the employee's personnel file.

 

I.          As a department locker is assigned to an officer, who places his/her lock on such

locker, locker search without notice may not be conducted without the permission of the

Officer of without a search warrant, provided, however, with 24-hour notice to the officer

involved, a locker inspection may be conducted by the Chief or the Chiefs designee. Such

an inspection may be conducted by order of the Chief without the requirement of employee's

permission and without a search warrant.  The employee shall have the right to be presented

during such locker inspection.

 

J.         Officers will have an opportunity to sign complaints of misconduct or resulting findings

of such complaints before such material is entered into their personnel files The officer's

signature constitutes acknowledgment that he/she has seen the material prior to its filing.

 

K.        All case documentation shall remain confidential within the Internal Investigation

Section and to the Chief of Police, and any other members of Police or Port management

with a reasonable need to know. Only cases which are classified as sustained shall be

forwarded to the Department Administrative file as well as a conclusion of findings to Human

Resources for inclusion in the employee's personnel records.

 

L.         There shall be a separate confidential Internal Investigation Section file for unfounded

cases. Such unfounded case file may be opened for legitimate "need to know" reasons with

the approval of the Chief and/or Deputy Chief. Such approval will be documented.

 

            XXXIV.           DRUG TESTING (Item 23)

 

            A.        PROPOSALS

 

            The Employer proposed three changes to the provisions on Drug

Testing-Substance Tests as set out in Appendix C of the

current Agreement. These include the following:

 

            (1).       Explicitly provide that the Port may engage in

reasonable suspicion testing for all members of the bargaining

unit. (Amend 4th paragraph in Preamble and modify 1st paragraph in

D) .

 

            (2 ).      Delete the requirement that an officer may challenge

through the grievance procedure the results of a drug test

prior to the time discipline is imposed. (Modify F.l).

 

            (3 ).      Allow the Port to discuss the results of a drug test

with representatives from Human Resources. (Amend G.2).

 

            The Union proposed to retain the existing language in the

new Agreement at Appendix C. The Union recognized the

possibility of extending the substance tests to all employees

rather than confining the tests only to probationary officers.

It proposed a revised set of pre conditions to Drug/Alcohol

Testing as those now found in Section B. The proposal of the

Union and the Employer‘s counter proposal are considered below

after examining the three proposed changes of the Employer set

out above.

 

            B.        CONTENTIONS IN SUPPORT OF PROPOSALS

 

            1.         Employer

            The Port offers the revisions and amendments to the current

language on Drug/Alcohol Testing in the Agreement to make clear

that all police officers are included under the existing Port

policy that allows “reasonable suspicion” testing of employees.

Some ambiguity may be argued under the current language of the

agreement that silence regarding coverage of non-probationary

officers implies these employees are not subject to the Port's

policy on drug and alcohol testing. Rather than await a

specific instance, the Port asserted that making the matter

specific and clear at this time is a protection to the officers

that certain procedures will be followed and assures all parties

that the drug policy is applicable to all members of the

bargaining unit.

 

            Sergeant Monohan affirmed that some kind of standard was

required prior to imposing a drug test (T I, 197:l-14).

According to the Employer, the most common was the standard of

"reasonable suspicion. " Kirk testified, "that looking at other

jurisdictions, most of them have 'reasonable suspicion'" (T V

199:5-13). This standard should be applicable to the police

officers at the Port, the Employer concluded.

 

            The Port argued that the proper time to challenge the

testing and test procedures was after discipline had been

imposed (if the results were positive) rather than prior to

discipline. Under the provision in E 7 of the drug and alcohol

policy, the employee can have the untested sample sent to

another lab at the Port's expense for checking on the accuracy

of the first test. The Port contended that this latter provision

was sufficient. Going through the grievance procedure before

discipline was imposed was neither reasonable nor feasible, the

employer concluded, citing a series of possibilities that would

be untenable. One crucial situation would be should the

Employer eventually decided not to discipline, say in the case

where legitimate use of prescription drugs had created the

positive test result and a long and lengthy process had to be

followed in order to dismiss the case.

 

            The third change was to assure that the Human Resources

department had access to the positive results of drug or alcohol

tests. Human Resources can handle sensitive circumstances such

as the instance of an officer testing positive for either

alcohol or drug use. This department now coordinates drug

testing throughout the Port and represents the appropriate

expertise to handle these issues (T V, 202:19-25). As now

written it is not clear that the Department is involved. The

Policy should be revised to make clear that the Human Resources

Department is involved, the Port concluded.

 

            2.         Union

            The Union pointed out that there was no evidence of any

current problems regarding drugs or alcohol in the Department,

as testified to by Kimsey (T VI, 166). According to the Union,

the Department has not tested all of the probationary employees

under the Policy, according to Sergeant Monohan (T I, 193).

Further, the Union noted that the Policy does not cover all

commissioned officers in the Department such as the Chief or

Deputy Chief. It questioned the purpose of the Port to ensure

that its commissioned workforce was drug free.

 

            The Union offered no additional comments or arguments

regarding the Port's proposed changes in the policy. It did

contend, however, that if the arbitrator accepted the standard

of reasonable suspicion on testing, that certain preconditions

should be established. These proposals and those of the

Employer are considered below.

 

            C.        ANALYSIS AND CONCLUSIONS ON THE EMPLOYER'S PROPOSALS

 

            I found the suggested revisions of the Employer in Drug and

Alcohol Testing to be well founded. For the most part the Union

does not object to the extension of the policy expressly and

explicitly to include all members of the bargaining unit, and

specifically the non-probationary officers. The basic issues

rested in determining what standard  should be used in ordering a

test.

 

            I noted first that the Port does not propose random testing

for non-probationary officers. Rather the standard of

“reasonable suspicion‘‘ is proposed. Clearly, the standard of

reasonable suspicion is noted specifically in four agreements

among the ten comparables. So far as I could find, no drug

testing policy per se was incorporated in the agreements with

other jurisdictions, presumably since the governmental units

involved set these policies for all employees of that government

entity. Further, as the Employer pointed out, the standard of

reasonable suspicion is the universal one, albeit noted as

synonymous with “probable cause” (See N. Brand, Ed., Discipline

and Discharge in Arbitration, BNA, 1998, p 208-9).

 

            I shall direct the incorporation of the revisions in

Drug/Alcohol Testing as proposed by the Employer into Appendix C

Drug/Alcohol Testing in the new Agreement, and specifically to

the inclusion of non-probationary employees under the policy and

the incorporation of a “reasonable suspicion“ standard for the

ordering of a drug or alcohol test.

 

            D.        PRE CONDITIONS FOR TESTING UNDER REASONABLE SUSPICION

 

            The Union and the Employer concurred in the following three

Preconditions to testing on the basis of reasonable suspicion:

 

            1.         The Port shall inform employees in the bargaining unit

what drugs or substances are prohibited.

 

            2.         The Port shall provide in-service training containing an

educational program aimed at heightening the awareness of drug

and alcohol related problems.

 

            3.         The Port and the Union shall jointly select the

laboratory or laboratories which will perform the testing.

 

            Three issues arose over remaining preconditions to testing

of non-probationary employees. First, although the parties

agreed that a Lieutenant or higher officer authorize or approve

that a test should be ordered, the Union insisted that the

decision maker should be DRE state certified. The Employer

argued that this was an unnecessary standard, that police

officers were already trained to make assessments about whether

an individual is impaired by alcohol or drugs.  The DRE

certification prepares an individual for court testimony

regarding various narcotics, a level of expertise far in excess

of that necessary to make observations and reach a conclusion

under the standard of reasonable suspicion.

 

            I concurred here with the Employer that the DRE

certification was unnecessary. Police officers, more so than

other employees, are training to make observations and reach

conclusions regarding the incapacity of individuals who may be

under the influence of alcohol or drugs. Accordingly, I shall

incorporate as item four among preconditions for testing non-

probationary employees, the following:

 

            4.         A Lieutenant or higher ranked officers shall be the

Police Department representatives to authorize or to approve a

drug/alcohol test.

           

            Second, although the parties agreed on the need for a

written report to document the decision to order the test, they

differed on when the report should be prepared. Here the Union

insisted upon the report prior to the administration of any

test. The Employer proposed only that "upon request" of the

employee, would a report be prepared after the test, setting

forth the basis for the reasonable suspicion justifying the

test.

 

            Clearly, a report before the test may well delay the

testing procedure until any traces of the drug had dissipated

from the employee's body.  This consequence effectively negates

the relevance of the test in the first place.   Testing for drugs

are time sensitive, and should be done with dispatch as soon as

a decision has been reached to order a test for any employee.

 

            At the same time, the basis of the decision to order the

test should be documented in writing and supplied the employee

upon request. The documentation should be timely and not left

open as the Employer's proposal does, until the officer

essentially gets around to it. Rather the written report for

the basis of the decision should be done immediately and no

later than the end of the shift on which the test was ordered.

This assures fresh recall and increases the likelihood of

accurate reporting of the observations on the appearance,

behavior, speech and body odors in relation to the work

performance of the employee.

 

            I shall include among the pre conditions for a reasonable

suspicion test the following:

 

            5.         The officer authorizing or approving a drug or alcohol

test under this Appendix C shall provide a written report to the

Chief, and to the employee, if requested, that documents the

basis for ordering the test under the reasonable suspicion

standard. The report shall be completed no later than the end

of the shift on which the test was ordered.

 

            The sixth proposal of the Union included a provision for

liquidated damages in the event the employee proved that the

drug testing was to harass the officer. Clearly a provision is

appropriate that affirms drug testing will not be used to harass

any officer. The inclusion of a liquidated damages provisions

as suggested by the Union has not been included in drug policies

to the knowledge of this arbitrator, and generally is regarded

as inappropriate in collective bargaining agreements based on

good faith relationships. I found no objective basis for the

inclusion of such a provision here, and accordingly shall

incorporate among the pre conditions for testing of non

probationary officers the following:

 

            6.         The Port shall not use the drug-testing program to

harass any officer.

 

            The seventh precondition offered by Union on destroying

negative test results is already covered in Section G.2 of the

Drug Testing Policy.

 

            D.        DECISION AND AWARD: DRUG/ALCOHOL TESTING

 

            I decided and award the following amendments and revisions

to Appendix C on Drug/Alcohol Testing for inclusion in the new

Agreement :

 

            The Preamble is unchanged except the following revision of

its fourth paragraph:

 

            As referred to herein, testing shall be applicable to all

entry-level probationary employees and to any other employee for

whom the Port has a reasonable suspicion that the employee is

working while under the influence of alcohol or drugs.

 

            Section A remains unchanged.

 

            Section B shall read as follows:

 

            B.        Preconditions to Drug/Alcohol Testing. Before an

employee may be tested for drugs or alcohol based on reasonable

suspicion, the Port shall meet the following prerequisites:

 

                        (1).       The Port shall inform employees in the bargaining

unit what drugs or substances are prohibited.

 

                        (2).       The Port shall provide in=service training

containing an educational program aimed at heightening the

awareness of drug and alcohol related problems.

 

                        (3).       The Port and the Union shall jointly select the

laboratory or laboratories that will perform the testing.

 

                        (4 ).      Lieutenants or higher ranked officers shall be

the Police Department representatives to authorize or to approve

a drug/alcohol test.

 

                        (5).       The authorizing or approving a drug or

alcohol test under this Appendix C shall provide a written

report to the Chief, and to the employee, if requested, that

documents the basis for ordering the test under the reasonable

suspicion standard. The report shall be completed no later than

the end of the shift on which the test was ordered.

 

                        (6)        The Port shall not use the drug-testing program to

harass any officer.

 

            Section D. Testing Mechanisms remains unchanged except the

introduction shall read as follows:

 

            D.        Testing Mechanisms. The following testing mechanisms

shall be used for any drug or alcohol tests performed pursuant

to the testing procedure.

 

            Section E. remains unchanged.

 

            Section F.1 is revised as follows:

 

            F.         Consequences of positive test results.

 

            1.         An employee who tests positive shall have the right to

challenge the accuracy of the test results, before any

disciplinary procedures are invoked, as specified in Section E.7

above.

 

            Section F .2 remains unchanged.

 

            Section G remains unchanged except that the last sentence

in G.2 shall read as follows:

 

            All positive test results will be kept confidential, and

will be available only to the Chief, one designated

representative of the Chief, the Human Resources Department and

the employee..

 

XXV. DRIVES AND WORK JURISDICTION   (Item 1)

 

            A. PROPOSALS

 

            The Employer proposes to change the work jurisdiction of

the bargaining unit to exclude work on the roadway that leads

into and out of the main terminal, referred to generally as the

"drive work." Police officers have been responsible to direct

and control the traffic on the drives. The Employer proposes to

staff the drives with noncommissioned personnel from out side

he bargaining unit. The Port suggested the following language

or the new Agreement:

 

            Beginning January 1, 2002, the Port may assign drive work,

that does not require a fully commissioned police officer, to

non-bargaining unit employees of the Port. Prior to that date,

the parties will meet and seek to resolve through a joint labor-

management committee, issues related to the transition. The

parties will also discuss whether earlier implementation is

feasible. ,It is also agreed that before any bargaining unit

members are involuntarily laid off during the term of the

Agreement, the Port will first lay-off any non-unit employees

performing the drive work. The parties agree that this does not

in any way prohibit the Port from seeking voluntary lay-offs by

unit members by enhanced severance packages, etc.

 

            The Union opposes the change in work jurisdiction of the

bargaining unit and seeks to retain the present language in the

Agreement.

 

            B.        CONTENTIONS IN SUPPORT OF THE PROPOSALS

 

            1.         Employer

            A major and central contention of the Employer was the

ineffective and inefficient use of police officers with high

level of training and expertise to direct traffic that could be

done by non-commissioned or civilian employees on the drives.

officers universally regard the drives work as at the bottom of

he chart of duties and responsibilities. According to the

employer officers who testified described the work as "least

desirable,'' a "thorn," nasty." The work is routine, boring

and inconsistent with the type of training and expertise of

police officers, the Employer maintained. It is routine and

mundane where not a lot of skill and expertise is required to

move cars.

 

            The Port argued that employees could be hired directly to

do the traffic control work, and would be more effective than

the police officers. The employees would be hired for the job

and would know that is what they are there for. They would know

the complexities, limitations and conditions of the job for

which they could be trained specifically. Employees to direct

traffic require less education, experience, and expertise than

do police officers.

 

            The Employer maintained that the civilian and or non-

commission personnel would control recalcitrant citizens more

effectively than the police officer. If a motorist fails to

comply with the instructions of the traffic officer, the non-

commission employee has recourse to assert that he must call a

police officer to enforce the law. In this case the police

officer arrives with greater force and impact than if he had

been the one that initially confronted the driver. The combined

efforts of the noncommissioned employee and the police officer

would lead to easier and greater compliance with instructions

than the police officer alone, the Port concluded.

 

            The Port noted that the situation would not improve in the

future, as passenger traffic and thus motorized traffic into and

out of the airport would continue to increase. If the Port is

required to hire more police officers, it is only throwing more

good resources about in a bad way. Not irrelevant here would

be the ability to hire employees at a lower wage than that paid

to officers, whose skills and expertise, as argued above, would

not be used fully.

 

            The Port pointed to the experiences at other airports where

traffic was controlled and directed by civilian or non-

commissioned officers. According to the Employer, the reports

were universally good and demonstrated that the proposal of the

Port was a good one. Commander Longton from Minneapolis/St Paul

airport reported on the experience there that now has used non

police officers on traffic control for nearly fifteen years.

That airport is near in size and configuration to SEA TAC.

According to the Employer, Longton affirmed that the success

there was exactly what the Port was claiming here. The use of

police officers inside the terminal and back up to the personnel

on the drives worked most effectively. They had encountered no

difficulties in citizens not obeying the non-commissioned

employee, but actually traffic control had improved and

complaints declined.

 

            The Port pointed to the use of civilians and other to

control traffic at other airports. In U 39, 14 of 29 airports

used non-commissioned employees in 1992. Both Kimsey and

Lindsey have traveled about the country and observed the use of

non-commissioned employees in traffic control at the airports,

and both affirmed that their use had meet with good success.

This experience affirms even more that the plan proposed by the

Port will work. According to the Employer, the 91-20 plan that

was developed in the mid 1990's was found by Lindsey to be

workable, a conclusion confirmed, according to Lindsey, by

Captain Wilkenson and Officer Salois who worked extensively on

the project.

 

            The Port denied that the absence of officers on the drives

would lessen security at the airport. The police officers would

still be around, and would be a stronger deterrent if stationed

inside of the terminals. Here the officers would be available to

respond to emergencies either inside the terminal or on the

drives.  Any emergencies at the airport have originated inside

the terminal, not on the drives, the Port asserted.

 

            The Port alleged also that the use of non-commissioned

personnel would improve customer service. First, employees

would be working on the drive that wanted to be there, who

regarded it as their job and wanted to perform the drive

activity. Second, complaints would decline, the Port believed

on this basis. In addition, the ability to have police support

from inside the terminals would enhance the performance of those

on the drives. Longton asserted that complaints did decline at

the airport in Minneapolis/St Paul with specifically trained

personnel for the drives work.

 

            Finally, the Port argued there would be cost savings,

probably primarily in the long term, and not now. A source of

funds would be the reduction in overtime. Twenty-nine officers

had over $20,000 of overtime, mostly earned on the drives last

year. Fifteen of them had salaries in excess of $100,000. With

out knowledge of what the new salary would be for the new drives

workers any accurate determination of possible savings is

precluded. But the Port insisted that the main economic and

efficiency gain was in the more effective use of resources,

where police officer could be used to the best advantage with

their training and expertise. Clearly, in the long run, the

Port would be able to employ new personnel at lower salaries and

cost, and from declining overtime work. The Port proposed to

protect fully the police officers by proposing to lay off all

non-commissioned personnel on the drives before any police

officers, should unexpected events lead to smaller needs at the

airport. But with a growth in seaport traffic, a need for

police officers will grow, the Port asserted.

 

            In summary the Port maintained that its "proposal fairly

balances the respective interests of the parties, and the

public. The officer will not longer be expected to perform a

task they disdain. The unit will be buffered from layoffs

caused by the reassignment. ... The concerns raised by the

Union and officers over the excessive amount of overtime at the

Port will be ameliorated. The Port will be able to have police

officers assigned to duties more consistent with their training

and pay. The Port will be able to assign more employees onto

the drives to assist with traffic flow. The Port and the public

will have employees on the drives that want to be there. It

will be a ‘beneficial thing’ for everyone. The Port‘s drive

proposal should be awarded by the Arbiter,” the Employer

concluded.

 

            2.         Union

 

            In its introduction to this issue, the Union alleged that

it was “by far the most important issue to all of the officers

in the bargaining unit. “ Noting further that the traffic

control work had been a core part of the bargaining unit work

for over thirty years, the Union decried the Port‘s attempt to

transfer that work to employees outside of the bargaining unit.

It alleged further that the Port had failed to meet its burden

to show the change is justified and that benefits of the change

outweigh the interests of the employees and the Union. The

Port’s proposal on the drives issue of work jurisdiction must be

rejected, the Union concluded.

 

            Initially the Union asserted that the Port bears a heavy

burden to show that the change in bargaining unit work is needed

or desirable, practical. or reasonable in the absolute and in

relation to the interests of the parties. It asserted further

that the arguments in support of the change must clearly

outweigh those that hold to the status quo. Support for these

principles arose in part from cited interest arbitration awards

(Un Br, p 6 ).

 

            Through testimony of bargaining unit representatives, the

Union showed that the drives work was core bargaining unit work,

for as many as ten officers regularly are assigned to this work

each day. It has been a part of the work jurisdiction of the

nit for over thirty years. In addition, many of the positions

on the drives arise from overtime, a significant source of

income to members of the unit. But in addition, the Port has

recognized that the drives work was bargaining unit work.

Swanson acknowledged so specifically in the resolution of the

tollbooth grievance in 1992. Traffic control work was then and

is now bargaining unit work, the Union affirmed.

 

            Also, the Union noted the 1996 negotiations where the

existing language of the contract was drafted affirming that

drives were in the bargaining unit jurisdiction, as shown in

Appendix 0. Swanson affirmed that the Port would "work with

them to protect this jurisdiction." Further, two arbitration

decisions during the term of the current agreement confirmed

that the drives work was in the work jurisdiction of the Union

(U 26 and 27 ). These decisions noted that "job security is dear

o union members" and protection of their work jurisdiction

through the recognition and union security clauses affirms their

interests in maintaining work jurisdiction.

 

            The Union pointed out that the subject of excluding the

drives work from the unit had been discussed for many years.

But in all of this time, no agreement had been reached. The

union stressed that in the example from the Minneapolis/St Paul

airport, used by the Port to support its claim for the use of

civilian employees on the drives, the union and the employer

greed to the change in work assignments. Further, the Union

emphasized the officers' interests in preserving their work by

their unanimous rejection during current negotiation of a Port

proposal that included changes in the assignment of drives work.

Although this matter related in part to the issue of whether or

not the drives issue was a permissive or mandatory subject for

bargaining, the unanimous opposition of the officers is a

circumstance that the arbitrator cannot overlook in appraising

the effect of the Port's proposal on the members of the

bargaining unit.

 

            The Union offered a major contention that the Port had

failed to prove that using limited commission personnel would

work at SEA TAC. First, the Union claimed via the testimony of

LaBissoniere and Monahan that the police officers have the best

ability to keep the traffic moving. LaBissoniere has 28 years

of experience in working on the drives, and that first hand

experience cannot be ignored in evaluating the effectiveness of

police officers. Of relevance here the Union noted, is the

growth and expected growth in traffic on the drives over the

next five years as passenger volumes expand. Pressure on the

drives grows with increase in the number of passengers, and

officers are most capable to meet the increased pressure. The

resistance of citizens to traffic control requires the presence

and authority of the commission police officer. The Port's

arguments were unable to doubt this effectiveness, the Union

summarized.

 

            Further, according to the Union, no basis exists to assert

that use of civilians will improve the situation. Citizens will

increasingly defy non-commissioned personnel. Further delays

will result as uniformed offices are called to resolve the

matter. Here the Union stressed again the practical experience

and according to it, "the best testimony" on the operation of

the drives systems and the likely deficiencies of the use of

non-commissioned personnel.

 

            The Union claimed that every study of the drives issue had

concluded that police officers were the most effective way to

ensure traffic keeps moving (U 30, 33, 3 8 ). The Port offered no

study of a thorough evaluation of the management of the drives

system and that concluded use of civilians would work. The Port

relied upon the testimony of Longton who claimed the use of

civilian personnel would work, but admitted he had no first hand

knowledge of the SEA TAC situation. He agreed that success in

one location did not necessarily guarantee success in another

location. Longton had made no study of SEA TAC upon which he

could rely for his judgments. Also, the Union claimed that

Kimsey‘s testimony was an opinion only, even though he had

traveled extensively and belonged to a number of organizations

related to airport management and police responsibilities. His

testimony must be considered less valuable than that of those

directly involved in the system as Monahan and LaBissoniere, the

Union asserted.

 

            Finally, the Port failed to demonstrate that the security

of the drives and terminal would not be lessened with the

departure of the police officers from the drives. As now

assigned these officers can respond to problems in the terminals

as well as meet problems on the drives, the Union stated. On

the drives the police officers represent another layer of

security. Clearly, the Union asserted, the law enforcement

capability of the police officer is a considerable asset to the

security of the Port. Without officers assigned to the drives,

the Port will lose a significant security layer, the Union

concluded.

 

            Finally the Union argued that the benefits to the Port were

must less than the costs to the officers and the Union. First,

no real evidence was submitted to show that the civilian

personnel would reduce costs, and argued only that the Port

could make better use of its police officers. Yet when ask,

Deputy Chief Kimsey could not affirmed where police officers

would be reassigned from the drives to improve their

functioning. According to the Union, the Port failed to provide

any tangible benefit by the use of non-commissioned personnel on

the drives that could in any measure offset the elimination of

many drives positions and a large body of core bargaining unit

work for the Union and its members.

 

            Utilizing the elements that have been used to appraise the

reasonableness of contracting out work, the Union emphasized

again that the there was a thirty year past practice of

including the traffic control work on the drives as core

bargaining unit work. The history of negotiations by the

parties and arbitration decisions affirmed that the contract

protects the drives as bargaining unit work. The effect upon

the members of the unit and the Union is substantial from the

Port's proposal, the Union continued. Employees are negatively

impacted by loss of positions and loss of substantial overtime

income. The Port's proposal gives neither any guarantee that

positions will not be lost nor where the ten or more officers

now working on the drives would be reassigned. Thus the

bargaining unit is faced with both loss of positions and loss of

income. With the Port's proposal this represents a permanent

loss, and not a temporary one.

 

            In conclusion, the Union contended, "For all of these

reasons, any justification that the Port has offered for its

proposal simply cannot outweigh all of the factors that favor

the Union's position." Accordingly, the Union respectfully

requests that the Arbitrator reject the Port's proposal with

respect to the drives and retain the current contract language

unchanged.

 

            C.        ANALYSIS AND DISCUSSION

 

            I have concluded that the work jurisdiction of the

bargaining unit should be left undisturbed during the term of

the new Agreement. Accordingly the proposal of the Employer to

reassign the drives work to noncommissioned and or civilian

employees has been set aside. The following considerations led

to this conclusion.

 

            For the most part the contentions and arguments of the

Employer fell short of demonstrating a clear preference over

those made by the Union. This was particularly the case with

respect to the issue of the relative effectiveness of civilians

versus police officers in working the drives. Although no issue

can be made over the fact that civilians have successfully

functioned as traffic control personnel at other airports, the

issue concerns the relative effectiveness of the two groups.

Traffic control is an aspect of police work, and cannot be

considered as outside the normal or ordinary functioning of

police officers. This fact confronts the Port's argument that

traffic controllers can be trained specifically for the job.

But to a certain extent, police officers are also so trained.

           

            Nor could I conclude that the enforcement mechanism

suggested by the Port would be any more effective than the mere

presence of police officers on the drives, in the first place.

The Port argued that with civilians there would be two steps in

enforcement. First the request and order of the traffic

controller is made. If he/she were not successful in moving the

motorist, a call would be made for a uniformed police officer.

The officer's impact would be greater than had the officer made

the request to 'move on" to the motorist in the first place,

according to the Port. Although this may be true, equally so is

'the fact that when, in the first instance, a uniformed police

officer requests a motorist to move along, that request has

greater impact than when the motorist is ask by a traffic

controller to do so. Thus fewer situations arise in the first

place that would require the "enforcement" strategy of the Port.

The presence of the officer at hand at the time of resistance

lends immediate enforcement action, if necessary, and avoids

delay in calling for an officer from the terminal and explaining

the incident for his resolution. The evidence is not clear at

all that the impact will be the greatest in moving traffic

appropriately by a two step process over the immediate presence

of the police officer giving instructions directly and initially

to motorists and others on the drives.

 

            Contrary to the contention of the Union, the use of

civilian traffic controllers, limited commissioned or non-

commissioned personnel does work to control traffic on airport

roadways and drives, or so many other airports would not have

such personnel assigned to that work (U 31, E 238; T VI, 112-

113). But the issue is not feasibility or whether the civilian

system of traffic control works, for it does. Rather the

central consideration is whether that system works better and

with fewer resources to accomplish the same purposes and level

of productivity as a system solely staffed by commissioned

police officers. I found the Employer's case and arguments in

this latter regard to be weak and relatively unpersuasive.

 

            The Port acknowledged that there probably would be no

savings at least initially, only that additional personnel could

be obtained at a very minimum of cost. I understood the

strategy of the Port to include the expectation of a reduction

in the number of officers on staff now as senior officers retire

in the near future. In addition, as the airport is expected to

expand, and the seaport area particularly, the Port expects

additional police officers will be required. The need for

officers to fill the positions of those retiring and the need

for officers to fill new positions as the airport and seaport

increase activity will absorb those officers reassigned from the

drives. Thus the jobs of present bargaining unit members are

protected and no additional officers will need to be hired for

some time. Finally, the Port would replace the police officers

from the drives with lower paid noncommissioned personnel who

specialize only in traffic control. However a consequence of

this strategy is substantially larger total costs over the next

several years until open positions from retirements and from

increased Port activity catch up with the present staffing

level, even if a substantial amount of overtime now paid police

officers for working on the drives is eliminated.

 

            Although not stated but implied by the Port, the

alternative strategy would be to increase the number of police

officers to fill positions resulting from increased airport and

seaport activity and to hire replacements for those who retire,

if the drives remained staffed by police officers. But the

record was devoid of any reasonable direct comparisons between

these two potential strategies. It was not clear whether one

course of action was more resource efficient than the other.

 

            A public employer should be in the position to demonstrate

its proposed action either saves or doesn't save resources.

Here in the case of the drives proposal I could find no source

within the testimony or among the exhibits that laid out the

alternatives before the Port and the relative costs of the two

systems although some unreliable attempts were made a few years

ago (U 38, p 78-80;U 48). This comparison was essential to be

done by and for a public employer whose bottom line is not the

governing objective of its activity. Such a cost comparison is

a prerequisite for so significant a change in operations before

an interest arbitrator orders a change in the work jurisdiction

under a collective bargaining agreement between the Port and the

Teamsters.

 

            Two considerations remain upon which the conclusion to

retain the current work jurisdiction for this bargaining unit

was based. The first concerns the issue of security, and the

"onion" theory of layers of protection at the airport. The

visibility and presence of police officers has a calming as well

as law enforcement aurora, and some impact does result from

their presence on the drives as the first layer of security.

Although I may have viewed this matter differently on September

10, 2001 than when writing this a week later, the current

uncertainties regarding security at airports and other public

places suggest that the evident presence of police may have some

mitigating effect on criminal and terrorist activities. The

public perception of a proposed decline in the number of police

officers on the drives might well suggest a decline in security

measures at an unfortunate time whether or not security truly

was less in any degree.

 

            Second, there can be no doubt that the protection of its

work jurisdiction is a major matter of importance to the Union

and its members. At the introduction of this issue, the Union

described the drives as "by far the most important issue to all

of the officers in the bargaining unit" (Un Br, p 5) . Several

of the officers were clear that they would not give up the

rives. LaBissoniere said "we're not going to give up that type

of money to put civilian people out there and replace us" (T 11,

154:17-20; see also T 11, 132-33; 136-37). The matter has been

discussed for years without an agreement. In current

negotiations, the Port presented a offer to the Union with the

ort ' s drives proposal included. The Port's proposal was

unanimously rejected. The work jurisdiction has included the

drives work for over thirty years and now accounts for more than

one fourth of the work of the bargaining unit.

 

            These factors have persuaded this arbitrator to affirm that

the Union would have been adamant in holding to its position on

work jurisdiction, and only an extensive set of guarantees and

or substantial money inducements would have changed its

position. I found nothing in the Port's set of proposals

considered herein that would have been sufficient to offset the

apparent strength of resolve by the Union and the police

officers to keep the drives work. I have concluded that the

Union would have prevailed on this issue in an open market

circumstance by its greater "bargaining strength."

 

            D.      DECISION AND AWARD: DRIVES AND WORK JURISDICTION

 

            I decided and award that

 

            The Employer's proposal to staff the drives with non-

commissioned personnel from outside the bargaining unit is

denied.

 

XXVI. CONCLUSION

 

            The awards have been set forth at the end of each section

l and shall not be reproduced here.

 

            I have written language in modifying some of the proposals.

If you cannot agree on what is the intent of the language, I

regard it my responsibility to clarify at the request of either

I party within ninety days of the date of these awards, so that

whether you agree or not, both of you will understand at least

what was intended. My decision in each case is intended as a

final and binding one.

 

            All awarded changes in the Agreement are effective upon

ratification of the new Agreement unless stated otherwise in the

specific item's award.

 

                                                            Respectfully Submitted

 

                                                            Kenneth M. McCaffree

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