The
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
Date Issued: 09/20/2001
IN INTEREST ARBITRATION
Between )
) OPINION, DECISION AND AWARDS
TEAMSTERS LOCAL
(
)
-and- ) Kenneth M. McCaffree
)
THE
(Employer, Port) )
)
Re: 2000 - 2002 Agreement )
Terms ) Case No: PERC 15432-1-00-348
)
Representatives: )
For the
Spencer Nathan Thal ) 23;
26-28;
)
For the Employer: ) Place of Hearing:
Otto G. Klein, IIII )
) Date of Award:
__________________________________________)
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.
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
)
THE
(Employer, Port) )
)
Re: 2000 - 2002 Agreement )
Terms ) Case No: PERC 15432-1-00-348
)
Representatives: )
For the
Spencer Nathan Thal1 ) 23; 26-28;
)
For the Employer: ) Place of Hearing:
Otto G. Klein, IIII2 )
) Date of Award:
__________________________________________)
I. INTRODUCTION.
A. NATURE OF PROCEEDINGS
These proceedings arose under the Public Employees
Collective Bargaining Act of
and the Port are parties to a
collective bargaining agreement
covering the Police Officers
bargaining unit whose term expired
on
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
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
25).
_______________
1 Staff Attorney, Teamsters Local
Street,
2 Member, Summit Law Group PLLC,
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
seaport and harbor areas of
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
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
(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” (
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.
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
17. Bicycle
Team Differential: New Provision (by
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
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
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
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
and 238, the Employer offered
the
“Classification/Compensation
Project Report“ of fifty pages and
the “Survey of Police
Services, “
Airport, 1998.
The
notebooks. Among these
exhibits was a copy of the current
agreement between the
new agreement already
tentatively agreed to, and copies of the
collective bargaining
agreements for
County,
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
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
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
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
'a well-established historical
practice of using a set of
comparables--known as the
pro quo compromise achieved
after lengthy negotiations." These
jurisdictions included
According to the
reached a compromise to use
the
had proposed using
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
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
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
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
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
comparables for determining
wages, hours and conditions of
employment for police officers
at the Port.
One other aspect of the exclusive use of the
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
with certain terms of the
Agreement whose improvement may be
supported by
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
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
Table 1 -
List of Comparables and Departmental Size
AGENCY DEPARTMENT
SIZE*
(Commissioned
Officers)
Seattle 1244
King County 611
Tukwila 69
Auburn 72
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
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
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
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
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
III BASIC WAGE INCREASE
(Item 11).
A. PROPOSALS
The
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.
In support of its proposal for a 5% basic wage increase o
behind the
64, E 67). Also by a similar
analysis of the 1999 salaries, the
average of the
concluded that a 5% basic
salary increase was appropriate and
justified.
The
various comparisons including
longevity, education incentives,
pension and the basic wage, as
represented by tables in E 68-91.
The
"they bear no
relationship to the reality of the bargaining
unit." As an
illustration, 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
further, the longevity
analyses were not relevant, the
claimed, since nearly half of
the force are not "A" officer, a
necessary eligibility for
longevity.
The
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
relevant for comparison within
the determination of the wage
changes.
The
Endressen
who alleged, "arbitrators tend to limit compensation
factors so that the parties
can conduct a simple analysis" (T
III, 17, 57). Further the
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
increase in 2000 was
reasonable. Here the
to catch up from 1999 where
the data show the Port officer some
2% behind comparables. Further
the
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
cost of living during the last
collective bargaining agreement,
and some catch up was required
here.
Further, the
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
made by
substantially better than
other jurisdictions (U 59). The
reported, also, that Captains
and Lieutenants were given first
year increases of 4.75% and
5.75% respectively (E 101). The
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
remain competitive so that it
avoids the difficulties that it
as already experienced with
staffing shortages in the early
1990's.
The
catch-up with and remain
comparable to the
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
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
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
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
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
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
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
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
in support of its basic wage
increases was seriously flawed.
The Port found the
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
based a 12% increase in wages
upon this study. Also, the Port
alleged that the
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
irrelevant and beside the
point here as regards wage and
benefits levels.
The
reported by various entities
surveyed by
recognizing that ranges vary
and without knowledge of whether
employees were actually hired
at that maximum a fictitious and
unreliable figure resulted.
The
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
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
fraught with problems. Not
only did the
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
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
that employee would have
received an extra 2% for longevity over
the 21 year employee and would
have completely eliminated any
claim of the
pointed out.
Further the
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
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
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
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
premiums for
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
King Cty 4264.00
10
42.64
Auburn
4139.00 8 33.11
Tukwila
4256.00 0 0.00
Average 4303.00 6.9 29.20
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
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
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%*
King County 3.6 3.5 3.5
Seattle 3.5 3.5 3.5
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
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
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
the
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
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
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.
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 (
Six) offer the educational
incentive at completion of probation
or earlier in the service
career of the officer than is done by
the Port.
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
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
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
The testimony of Officer Minnehan
that the
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
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
First, the
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 (
Bellevue, Everett, Federal
Way,
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
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
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
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
V. CANINE TEAM DIFFERENTIAL (Item
12).
A. PROPOSALS OF THE PARTIES
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.
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
Further, the
differential among comparables
was greater than at the Port.
Reporting only the
differential for the
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
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
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
among the comparables.
Finally, the
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
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
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.
325 hours,
hours.
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
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
compensation to the canine
teams.
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
But in addition, the Port officer receives one hour each
day with pay to care for the
dog that is not available to the
premium time, no pay advantage
exists for
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
The Port proposes to retain the current dive team pay
differential of 2%.
B. CONTENTIONS IN SUPPORT OF PROPOSALS
1.
The
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
same waters, do the same tasks
as other dive teams in the area.
Although
pay an average of almost 5%
among the
percentage is well above what
the dive team receives at the Port
and justifies the increase
from 2% to 4%, according to the
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
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
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.
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
Tukwila and now
and Port officers respond to
assist other jurisdictions with
regard to "live"
incidents.
The
increased to 4% because
others in the
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
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
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
officer assigned to TSU shall
be two percent (2%) above
the employee's base pay rate.
VIII. DETECTIVE
DIFFERENTIAL (Item 15).
A. PROPOSALS
The
The Employer proposes to retain the 3% detective pay
differential in the current
Agreement.
B. CONTENTIONS IN SUPPORT OF PROPOSALS
1.
The
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
detective work among the
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
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
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
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
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
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
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
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
rings him upon a situation
more rapidly than under other patrol
practices, and increases risks
to him in that way.
The
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
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
congested areas, the Port
noted. Not mentioned by the
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
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.
The
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
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
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
the end of Phase III training
who play an important role in the
development of young officers.
Finally, the
undermine the program of
training. The program is “mentally
draining“ because of the
responsibilities in training, the
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
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
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
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
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
Federal Way* 0 N/A
King County 11.5 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
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
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
asserts pays a higher rate
than at the Port. Accordingly, the
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
2% in each step of premium pay
for this position. Although the
Port situation was established
on the pattern of the
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
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
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
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
shift. These elements justify
the 5% night shift proposal of
the
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
pay such a premium. The
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
The absence of any practice in the industry generally as
well as among the ten
comparables to provide a night shift
premium, except
“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
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
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
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
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.
The
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
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
protect the employer from
unexpected opting out by an officer,
and to allow the scheduler
adequate time to find a replacement.
The
opt-out by an officer who
fails to give at least seven days
notice.
According to the
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
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
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
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
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
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
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
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
insufficient justification for
changing the canine schedule from
a system that "works
well" to one that will be complex and
difficult. The
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
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
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
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.
The
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
If the Union proposal were
adopted, the maximum accrual at the
Port would be 256, equal to
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
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
provides 200 hours, and the
average of the
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
proposal.
C. ANALYSIS
My examination of the vacation accruals among the
after 25 years service shows
that four of them provide 216
hours of vacation. If
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
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.
The
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
interferes with patrol and or
training time. Finally, the
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
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
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
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
member of the Bomb Disposal Unit.
XVIII. TAKE HOME VEHICLE: CRIMINAL INVESTIGATION SECTION
(Item 6).
A. PROPOSALS
The
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.
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
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
Coming from home a detective
must first go to the airport, and
this delay can endanger an
investigation, the
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
Although the Port alleges it is expensive to allow cars
to
go home, this cost is
negligible, the
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
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
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
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
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
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
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