City of
And
Interest Arbitration
Arbitrator:
Richard W. Croll
Date Issued:
Arbitrator:
Richard W. Croll
Case #: 15590-I-01-354
Employer:
City of
Date Issued:
AN INTEREST
ARBITRATION
BETWEEN THE
AND THE
CITY OF
OPINION AND
AWARD
PERC CASE NO. 15590-1-01-354
PROCEDURE
The parties to the dispute are
the uniformed police officers and sergeants of the
Mountlake Terrace Police
Department who are represented by the
Police
Guild (Guild) and the City of
RCW 41.56.450 provides for
arbitration of disputes when collective bargaining involving
uniformed
personnel has resulted in an impasse. The parties have agreed to the selection
of
the Arbitrator as provided in RCW 41.56.450. The parties have waived the
tripartite
arbitration
panel provided for in RCW 41.56.450 and have submitted their dispute to a
single
arbitrator.
A hearing was held in the
the
testimony of witnesses was taken under oath and the parties were allowed to
present
documentary
evidence. A court reporter was present and a verbatim transcript was
prepared
and provided to the parties and the Arbitrator.
The parties agreed to submit posthearing briefs and the Arbitrator received the final
brief
on
to
the parties and that date is
APPEARANCES
For the City: Cabot Dow, President
Amie Frickel, Labor Negotiator
Cabot Dow Associates, Inc.
For the Guild: Patrick A. Emmal,
Guild Attorney
Emmal, Skalban & Vinnedge
Others present: Connie Fessler,
City Manager
Mike Pivec,
HR Manager
Scott Smith, Police Chief
Sydney Vinnedge,
Guild Attorney
Tom Baisch,
Guild Legal Assistant
Don Duncan, Guild President
Jonathan M. Wender, Guild Vice President
Doug Hansen, Guild Negotiator
Mark Connor, Guild Member
Craig McCaul,
Guild Member
BARGAINING
BACKGROUND
The Guild and the City have
been engaged in collective bargaining since at least 1977.
During those years the parties
have enjoyed a successful and positive relationship settling
all
contracts without arbitration. The predecessor contract to the contract being
negotiated
is the 1998 - 1999 Agreement which expired on
1998 -1999 Agreement was not
finalized until April 1999. Following this long period of
time
the parties took to reach agreement, they agreed that they did not want to
continue in
the
same type of bargaining process. They contacted the Federal Mediation and
Conciliation Service (FMCS) to
provide them with training in a collaborative bargaining
approach,
They instituted the collaborative approach and it was agreed that the early
results
were positive. However, some of the issues did not appear to be soluble using
the
collaborative
method and it was decided to discontinue the collaborative approach and to
attempt
to gain resolution through conventional bargaining. Subsequently the parties
requested
assistance from PERC, impasse was declared and PERC certified the impasse
for
arbitration.
ISSUES
The four issues which were
certified by the Public Employment Relations Commission
(PERC) Executive Director
Marvin Schurke are:
1. Duration
2. Article 6.1.4 - Scheduling
3. Article 9 -Wages
4. Appendix “A - Wages (Grids)
The parties met prior to the
Hearing to discuss the Issues. They reported to the Arbitrator
at
the Hearing that they had resolved issue one and two and that they were asking
the
Arbitrator to decide issues
three and four.
LEGAL BASIS OF
ARBlTRATlON
The statute mandating interest
arbitration contains rationale for why the parties must use
interest
arbitration when an impasse in bargaining occurs.
RCW 41.56.430 The intent and purpose of Chapter 131, Laws of 1973 is to
recognize
that
there exists a public policy in the state of
personnel
as means of settling their labor disputes; that the uninterrupted and dedicated
service
of these classes of employees is vital to the welfare and public safety of the
state
of
should
exist an effective and adequate alternative means of settling disputes.
The statute also provides
guidance and direction to the parties and the arbitrator in regard
to
what factors are pertinent and should be considered in the development of the
arbitrator’s
award. Those factors are set out as follows:
RCW 41.56.465 In making its determination, the panel shall be mindful of
the legislative
purpose
enumerated in RCW 41.56.430 and, as additional standards or guidelines to aid
it
in
reaching a decision, is shall take into consideration the following factors:
(a) The
constitutional and statutory authority of the employer;
(b) Stipulations
of the parties;
(c) (I) For employees listed in RCW 41.56.030 (7) (a) thorough (d),
comparison of
the wages, hours and
conditions of employment of like personnel of like
employers of similar
size on the west coast of the
(d) The
average consumer prices for goods and services, commonly known as the cost
(e) Changes
in any circumstances under (a) through (d) of this subsection during the
pendency
of the proceedings; and
(f) Such
other factors, not confined to the factors under (a) through (e) of this
subsection, that are
normally or traditionally taken into consideration in the
determination of
wages, hours and conditions of employment.
of living;
COMPARABILITY
The issue of Comparability has
been discussed, analyzed and developed over the years by
the
advocates and arbitrators who have implemented RCW 41.56.465. In many interest
arbitration
awards the lead issue is what jurisdictions should the arbitrator decide are
the
appropriate
ones to compare to the disputing community. In the current dispute that is
also
the lead issue. The parties have restricted their offer of comparables to
cities in the
western
portion of the state of
between
the parties over the contested comparables.
The statute in (c) above makes
it clear that comparisons must be made to “like employers
of
similar size”. The definition of similar according to the City would mean that
one is to
compare
cities that are 50% larger or smaller than
23
western
Axon, Beck and Krebs who used
population statistics ranging from +/- 20 % to a +47%/
-30 % in nine arbitration
cases involving cities and counties in
Brief p. 11) The Guild has
presented documentation and argument that there is a basis for
comparables
that exceed the +/- 50% the City is proposing. The Guild quotes the award
of
Arbitrator Gaunt in this regard to indicate that when she was seeking
comparables for
the
City of
same
award, however, Arbitrator Gaunt said, “Clearly, parties and arbitrators have
settled
upon
narrower ranges than + 50% when a sufficient number of comparators can be found
closer
in size.” (Guild Brief pp. 8-9). The documentation
submitted by the City is
persuasive.
For when they applied the +/- 50% population formula they found that there
were
23 cities in western
population
statistics formula that applied t o a city the size of
cities
in the state, would not have the same merit in regard to
are
many more cities close to the size of
there
would be cities similar in size to
A review of the literature and
prior arbitration awards indicates that either the City’s
suggestion
of ten comparables or the Guilds seven comparables or a similar figure is
adequate
for purposes of determining comparability. The City said they chose to reduce
the
23 cities on their list using assessed valuation which the City said was the
“...second
most
commonly utilized criteria.. .” (City Brief p.11).
Utilizing this formula they reduced
the
list to five cities of similar size immediately above and below
assessed
valuation. The City’s list of comparables includes; Issaquah, Marysville, Mt.
and
geographically
diverse. They pointed to perceived dissimilarities to
of
the City’s comparables from counties other than Snohomish and King. They were
critical
that the City’s list contained only three larger communities and seven smaller
ones.
Their analogy was that the smaller cities would make
larger
when compared to the smaller cities that are ‘lower paid’ (Guild Brief p. 13).
They
also
say that the City ignored the historical significance of the “geographically
proximate
comparables”(Guild
Brief p. 13).
The Guild’s comparables
included
Tukwila,
represented
communities to which they had compared historically. They justified the
comparables
as being similar to, and located in proximity to
Guild stressed that the two
largest comparables on their list,
Lynnwood - 32,990, share many
programs with
SWAT,
narcotics, training and jail facilities. Also they share dispatch
service and their
officers
back each other up. The Guild also said that their comparables were on or close
to
1-5, which has a similar impact on the comparable communities and the policing
problems
it causes.
The Guild said that there was
an historical basis for their comparables and that
historically
their comparables, the City’s and the Guild’s, included the communities in
proximity
to
of
historical comparables will have to have been presented with significant
rationale to
change
that list. Assuming the list had served as the basis of the parties’ bargaining
for a
period
of time, the arbitrator would be most cautious about changing that list on the
request
of one of the parties. The burden would be on the party seeking the change to
provide
the reasons for the change. In the same vein, where the parties dispute a
historical
list of comparables as the parties are doing in the instant case, the party
seeking
to
convince the arbitrator that there is an historical list needs to provide the
proof of that
list.
The testimony of Guild Witness Connor, on the bargaining team since 1985, is
contrary
to the concept presented by the Guild that there is or ever has been an agreed
upon
set of comparables.
Mr. Emmal:
(Q) “Do you recall that there has ever been a stipulation between the City
and
the Guild regarding what jurisdictions are comparable?
Mr. Connor: (A) “I don’t
specifically recall. I would like to think that over the years we
have
agreed to comparables, but I don’t believe it has been every time.”(Tr. p. 28)
The City and Guild’s witnesses
agreed regarding historical comparisons.
Mr
Dow: (Q) “Do you recall any agreement between the City and the Guild on
comparisons
with other cities, who compared to who?
Chief Smith: (A) ‘No, I don’t
ever recall where either side stipulated to or said, yes,
those
are the comparables.” (Tr. p. 145)
It is firmly established on
the record that at no time did the parties agree on a historic list
of
comparables. As was testified to by the parties they have each had there own
list and
the
only time there were the same comparables was by coincidence when the same
community
showed up on both lists. It would greatly facilitate the resolution of
negotiations
between the parties if they had a list of comparables they could agree to or
the
criteria for such a list. However, that does not seem possible. A review of the
major
problems
that prevented the parties from reaching agreement in the current bargaining
was
economic. If the parties wish to avoid impasse in their future negotiations,
they may
want
to focus on some method of selecting jointly agreed comparables. While in this
award I
will establish comparables, it is naive to assume the parties for future
negotiations
will voluntarily adopt them.
The law is clear that the
major criterion to be considered by the arbitrator to determine
comparables
is to use similar size communities. The list of “other factors” described in
(Q are
not definitively described. They certainly will include wealth, socio-economic
conditions,
geography, proximity, etc. The method used by the City in the development
of
their list as it pertained to size was impressive, but when they switched over
exclusively
to assessed valuation to limit the number of similar size communities to the
exclusion
of all other factors seems limiting. Where the parties have as many similar
sized
communities in their area as
comparators
from some distance away seems less than efficacious. To consider the
similarity
of cities such as Anacortes, Issaquah, Port Angles,
to
At the same time the
neighboring cities of
factors
used by arbitrators in similar situations.
involved
that the law as interpreted by a large number of arbitrators does not
countenance
that
great a disparity in the size of similar communities. I am selecting as
comparable the
following
communities:
Arbitrator’s
Comparables
City Population AV/Billions
Mt. Vernon 23,020 1,218
Marysville 21,710 1,304
Oak Harbor 20,910 809
Mountlake Terrace 20,070 1,112
Mukilteo 17,360 1,595
Lake Forest Park 13,070 1,150
Monroe 11,920 708
Mill Creek 11.345 962
Average 15,175
1.107
There were several reasons for
the selection of these cities as the comparables for
Mountlake Terrace. Of prime
importance was the fact that they were all either on the
City’s or the Guild’s lists or
as in the case of Mill Creek and Lake Forest Park, both
parties
list. All except Oak Harbor and Monroe are on 1-5 or immediately adjacent to
it.
I am convinced after listening
to the presentation of the parties that much of the crime
that
the police deal with in
generated
by their location near or on 1-5. Oak Harbor, while not on 1-5 is a city almost
identical
in size with
Monroe is included, as it is a
similar size city located in Snohomish County. Of the
comparable
cities, four, Marysville, Mukiiteo,
Snohomish County; Lake Forest
Park is in King County; Oak Harbor is in lsland
County
and
similar
to that of
WAGE GRID
The City proposes a change in
the wage grid. A portion of their proposal would drop the
current
Step B (45 Hours) and Step D (135 Hours). Their explanation for these proposals
makes
sense and the Guilds concern with the City position regarding changes in the
Grid
is
that it goes beyond the two simple changes outlined here and has become a part
of their
bargaining
position which is to oppose any changes to the educational incentive. (Tr.
p.79). At
this time the City requires all new hires to have an AA or ninety hours. There
is
only one person on the D Step and the City proposes to grandfather that
officer. The
elimination
of Steps B and D will not adversely affect any employee and is more clerical
in
nature than substantive. While it does not meet the definition in (b) above as
a
stipulation,
both parties indicated a willingness under certain conditions to make this
change
in the Grid.
As to the remainder of the
Grid; the City proposes to pay the officers on Step C (AA
Degree) a 4% premium and those
officers on Step E (BA Degree) an 8% premium The
City’s rationale for these
changes is that it “trues up” the wage grid. (City
Brief p.26)
Referring back to previous
comments by the Arbitrator regarding changes in long
established
policies, which have been developed by the parties, the wage grid fits this
description.
It has been a part of the parties bargaining since the first contract in 1976.
The Guild vigorously opposes
the modifications proposed by the City and argues it
would
substantially reduce the wages of their members. Their position that the
educational
incentive effectively takes the place of longevity that they do not have is a
potent
argument to retain the current grid as modified. This factor presented by the
Guild
coupled
with a definite reduction in the economic benefits to the Guild members if the
changes
proposed by the City are implemented, caution the Arbitrator not to make any
additional
changes in the Grid. This is an area where it appears the best way to make
changes
is for the parties to make them in future bargaining. As to the City’s proposal
to
give the officers the BA premium after probation rather than waiting until the
fifth
year,
this was a part of their overall grid proposal and will not be implemented.
WAGE
ADJUSTMENTS
Arbitrator’s Comparables - Fifth Step Wage
Comparison
City %+ 1998/5
Year %+ 1999/5 Year %+
2000/5 Year
Mt. Vernon 4.3 3,794 4.5 3,973 3.5 4,112
Marysville 3.7 3,822 3.0 3,941 3.0 4,059
Oak Harbor 3.5 3,715
3.0 3,830
3.5 3,694
Mountlake Terrace 5.0 3,864 3.0 4,068
Mukilteo 4.1 2,742
3.7 3,887
3.8 4,032
Lake Forest Park 3.5 3,741
3.0 3,857
3.0 3,973
Monroe 4.0 3,679 5.9 3,910 3.0 4,077
Mill Creek 3.5 3,839
2.5 3,938 3.4 4,027
Average 3.95 3,774
3.48 3,925
3.3 4.036
The City’s position in regard
to wage adjustments is to increase the base salary for Year
2000
by 3%, for Year 2001 by 3% and for Year 2002 by 3%.
The position of the Guild
in
regard to wage adjustments is to increase the base Police Officer’s salary by
5% and
the
base Sergeant's salary by 6% for Year 2000, increase the base salary by 100% of
the
CPI-W for 2001 plus 1% and
increase the base salary by 100% of the CPI-W plus 1% for
Year
2002.
The disparity proposed by the
Guild pertaining to the raises for sergeants and officers
seems
to have some historical basis. According to the City’s brief which has a
depiction
of
the raises given to officers and sergeants from 1990 through 1999 there were
four
years
when the sergeants received higher percentage raises than the officers. This of
course
has increased the difference in salary between officers and sergeants and it
has
also
increased the percentage the sergeants are ahead of the officers in CPI. A
second
chart
showing the cumulative relationship of the salaries to the CPI indicates that
the
officers
are approximately 1% ahead of the CPI and at the same time the sergeants are
approximately
4.5% ahead of the CPI (City Brief p. 17). The City opposes this
difference
in the raises on the two scales. They feel that the officers and sergeants
should
receive
the same percentage raise. The concept of giving the sergeants a higher
percentage
raise will of course increase the disparity between them and the officers. It
seems
that if the parties wish to increase the amount of money they give the
sergeants
over
the officers, it Should he bargained and made in a more mechanical manner. An
example
could be to increase the base salary of the sergeants. I am reluctant to add to
the
disparity
at this time. If in fact there had always been a difference in the percentage
increase
between officers and sergeants, then it would be logical to continue it. Under
the
current circumstances, the percentage disparity between officers and sergeants
will
not
he made.
Often in negotiations where
impasse is reached the question of the Employer’s ability to
pay
becomes a significant part of the problem and must be taken into account in
some
manner.
Negative economic resources or a bleeding budget, at least at this point in its
history,
does not impact
revenue
and agreed during the Hearing that they had a budget increase of one million
dollars.
This does not mean that if the City has the wherewithal to pay the Guild’s
proposal
that the Arbitrator, regardless of other factors should make that his award.
Mr. Emmal:
(Q) "The City’s revenue
increased, isn’t that true?
Ms. Fessler:
(A) "Yes, overall.”
Mr. Emmal:
(Q) “Are you saying that the City
has an inability to afford the wage increase
proposed
by the Guild?”
Ms. Fessler:
(A) ‘‘I don’t think we have ever
said that.”
(Q) “So it’s not a question of
inability to pay, it’s a question of desire to pay.”
(A) ‘No. It’s a question of
financial stability in the long term.”
(Q)”But you could pay if you
wanted to?”
(A)”I think you are asking me
if we have the resources to pay today. The answer is yes”
(Tr.
pp. 115-116).
The City and the Guild have
both raised issues about the application of RCW 41.56.465
(f), normal and traditional
factor bargainers consider in contract negotiations. The City
expressed
concern that the police officers be given the same salary raises as the other
bargaining
units in the City, The five other units in the City settled for 3% for 2000 and
four
of them settled for 3% in 2001. However, the fifth, the Teamsters, settled for
3.5 1%
for
year 2001. While these settlements are factors to be considered, the aberration
of the
Teamsters
settlement does tend to decrease their precedence value. Had the police
always
settled in lock step with the city’s other bargaining units, and had all units
settled
on
the same figure, both now and historically, this would have been significant.
However, while all five units
outside of the police received the same settlement in 2000,
the
Teamsters broke the mold and were given a contingency settlement based on the
CPI
W
of 90% for 2001. Additionally, for the year 2002, two units
have settled for the 3%
the
City is offering the police, three units are marked as "To Be
Determined" (Ex. C-45).
Nobody can for sure say what
these units will settle for in 2002. Considering these facts
does not
compel the Arbitrator to concur with the City that the police settlement should
be
the same as the other units.
The guild made an impressive
argument for including the cities of
list.
I determined that given the circumstances that there were 23 cities of more
comparable
size, they were just too large to be used in the list of comparables. However,
both
the City and Guild witnesses expounded on the amount of cooperation and inter
action
between the
Had these two settlements been
added into the comparables listed below, the average
percentage
settlement for year 2000 would have been 3.48% instead of 3.3%. I find that
while
the two cities cannot be listed as comparables, there is a factor that should
be given
some
recognition. The many officers from
who
work together on a regular basis and obviously discuss wages presents a cogent
argument
to include in the settlement a mutual aid factor of 0.30 %. This factor will
also
assist
the Guild to maintain their relative salary position in regard to the
Arbitrator’s
Comparables
- Fifth Step Wage Comparison as number one among the comparables.
The CPI-W for 2000 is 3.5% and
for 2001 3.5% (City Brief p.35). During the months
preceding
the Hearing it was at times higher than it is now and may have had some
impact
on some of the settlements which were finalized in previous months. The parties
presented
the opposing positions of what the CPI actually means to wage earners. They
raised
the question as to whether the CPI should be mathematically applied to wages or
is
there a
factor which is not relevant to the actual cost of living for employees and
should
that
be factored into CPI based raises in wages. The raise the Arbitrator will be
establishing
for the year 2000 will be based on the Arbitrator’s Comparables.
For the year 2001 the
following units from the comparables have settled:
4.0%, Oak Harbor - 3.5%,
Mukilteo - 3.9%, Lake Forest Park - 3.0% and Monroe -
3.9%. Marysville and Mill
Creek have not settled and the City estimated that they would
settle
at 3.5%, however, that is speculative and the Arbitrator’s preference is to use
hard
data
if at all possible. Using just the five settled units from the comparables
above the
average
percentage settlement for 2001 is 3.66%. These comparables present an
equitable
figure for determining the settlement for the year 2001 and do not seem to be
out
of line with the CPI.
An additional factor that will
be taken into consideration is that the comparables show
that
Step Wage Comparison grid for
1998 and 1999. In 1999 the Mountlake officer grid was
about
$1 00.00 dollars in first position among the comparables. This is to be taken
into
account
in this award as it is not appropriate for arbitration awards to diminish the
economic
standing of employees without a legitimate cause, financial hardship, economic
downturn
or similar problems which have not been brought to light in this case. As a
matter
of fact in
testimony
and documentation that the City could pay the current table position of the
Guild, an amount well below
what the Arbitrator will award.
The year 2002 presents a different situation
as there is not a sufficient list of settled
comparables
to determine a settlement trend for 2002. The City’s proposal is to apply a
3% increase to the base salary
and the Guild requests that they receive a raise equivalent
to
the CPI plus 1%. The City equates their offer of 3% - 2000,3%
- 2001 and 3% - 2002
as
equaling 90% of the CPI for the years in dispute. Again, anytime the Arbitrator
can
secure
guidance from the parties it is to everyone’s advantage. Processes and
procedures
that
worked for the parties in the past should be more familiar and usually have
resulted
from
the give and take of a traditional bargaining situation. The parties have in
the past
agreed
to allow the wages to be established by the CPI. Those settlements have been
based
on 90 ‘70 of the CPI - W. (Mr. Wender): ‘We have
consistently taken 90 percent
of
CPI settlements, understanding we do have to work as a team.”(Tr.
p.75). The
settlement
for the third year will follow the past procedure of the parties, however, as
this
should
not work to the detriment of any party, the historical position of the salaries
on the
comparables
shall be protected.
AWARD
Wage Grid:
Steps B (45 Hours) and C (135
Hours) shall be deleted from the Wage Grid. The wages
of
any Guild Members affected by this deletion shall be grandfathered. The
remaining
steps
of the Wage Grid shall remain unchanged except as impacted by the wage raises
stipulated
in this award.
Salary Increases:
Salary increases shall become
effective on
2001
for the 2001 year and
suggested
for retroactive wages in Joint #3 shall be implemented except the percentage
raises
listed below shall be inserted into the computation and payment procedures.
Base Wage Increase for 2000 -
Increase the 1999 base wages (Step A) for police officers
and
sergeants by 3.6 %.
Base Wage Increase for 2001 -
Increase the 2000 base wages (Step A) for police officers
and
sergeants by 3.66%.
Base Wage Increase for 2002 -
Increase the 2001 base wages (Step A) for police officers
and
sergeants by an amount equal to 90% of the CPI - W calculated between January
2001 and January 2002.
However, should the 2002 settlement change the ranking of
Wage Comparison, the base
amount shall be increased so that the Mountlake Terrace
base
salary shall be number one on that list by at least $100.00 dollars per month.