BEFORE THE ARBITRATION PANEL
In the Matter of an Interest Arbitration )
Between )
)
KITSAP COUNTY SHERIFF’S GUILD ) PERC Case 17687-1-03-0411
)
and )
)
KITSAP COUNTY )
_____________________________________________)
Appearances:
Cline and Associates, by Mr. James M. Cline, on behalf of the Guild.
Summit Law Group, by Mr. Bruce L. Schroeder and Ms. Jacquelyn M. Aufderheide,
Senior Deputy Prosecuting Attorney, on behalf of the County.
ARBITRATION AWARD
The above-captioned parties, herein “Guild” and “County,” selected the undersigned to
serve as Chair of a three-member interest arbitration panel. The Guild selected Christopher J.
Casillas to serve as its arbitrator and the County selected Bert H. Furuta to serve as its arbitrator.
A hearing was held in Port Orchard, Washington, on October 11-15, 2004. Thereafter, a
telephonic conference call was held on November 10, 2004, at which time additional exhibits
were introduced into the record and Labor Relations Manager Robert Gudmundson testified.
The parties subsequently filed briefs that were received by January 31,2005.
BACKGROUND
The Guild represents for collective bargaining purposes a unit of law enforcement
personnel employed by the County consisting of about 97 deputy sheriffs, 11 sergeants, and one
corporal. The parties engaged in negotiations for a successor collective bargaining agreement,
(“agreement”), to replace the prior agreement which expired on December 31, 2002, and the
parties subsequently reached an impasse in their negotiations after an investigation was
conducted by the Public Employment Relations Commission, (“PERC”). PERC on
September 22, 2004, certified the issues listed below for interest arbitration as provided for in
RCW 41.56.450.
Thereafter, the Guild on October 7, 2004, presented its Final Proposal and the County on
October 11, 2004, submitted its Final Proposal.
At the hearing, the parties jointly agreed to Articles IV and V of the agreement relating to
future negotiations and to a three-year term for the agreement,(fn:1) and that the Guild’s proposal
relating to “Call out duties” was not before the panel.(fn:2) The Guild then also dropped its proposal
relating to physical fitness, and the Guild in its post-hearing brief dropped its proposal relating to
deferred compensation. Because of the lengthy record, the parties agreed at the hearing to waive
the statutory requirement that the award be issued within 30 days following the conclusion of the
hearing.
__________
fn:1 The parties disagree over whether all or part of the new agreement should be retroactive
to January 1, 2003, the beginning date of the successor agreement. That is why this part of the
Term of the agreement is still open and why retroactivity is addressed for each issue in dispute.
fn:2 Transcript, at 95-96.
A draft of the Award was sent to panel arbitrators Christopher J. Casillas and Bert H.
Furuta on March 17,2005.
The following certified issues remain before the arbitration panel:
Article I, Section B (1) Release Time For Guild Activities
Article I, Section 0 Discipline & Discharge - Grievability Of Transfers
Article II, Section A Wages
Article II, Section B Step Increases - Sergeants’ New Step
Article II, Section D Longevity Bonus
Article II, Section E Assignment Pay
Article II, Section H Health Insurance
Article II, Section J Hours of Work
Article II, Section K(3),(5) Overtime - Compensatory Time Cap, Subpoena
Report Pay And Pyramiding
Article II, Section L Liability Coverage
Article II, New Section Educational Incentive
. . .
Article II, New Section Shift Differential
Article III, Section A Holidays - Premium Rate For All holidays
Article III, Section B, New Annual Leave - Approval Process
Article V Term
. . .
APPLICABLE STATUTORY PROVISIONS
RCW 41.56.465 Uniformed personnel-Interest arbitration panel-Determina-
tions-Factors to be considered. (1) In making its determination, the panel shall
be mindful of the legislative purpose enumerated in RCW 41.56.430 and, as
additional standards or guidelines to aid it in reaching a decision, it shall take into
consideration the following factors:
. . .
(a) The constitutional and statutory authority of the employer;
(b) Stipulations of the parties;
(c) (i) For employees listed in RCW 41.56.030 (7)(a) through (d);
comparison of the wages, hours, and conditions of employment of
personnel involved in the proceedings with the wages, hours, and
conditions of employment of like personnel of like employers of similar
size on the west coast of the United States;
. . .
(d) The average consumer prices for goods and services, commonly known as
the cost of living;
(e) Changes in any of the circumstances under (a) through (d) of this
subsection during the pendency of the proceedings; and
(f) Such other factors, not confined to the factors under (a) through (e) of this
subsection, that are normally or traditionally taken into consideration in
the determination of wages, hours, and conditions of employment.
. . .
RCW 41.56.430, in turn, states:
RCW 41.56.430 Uniformed personnel-Legislative declaration. The
intent and purpose of this 1973 amendatory act is to recognize that there exists a
public policy in the state of Washington against strikes by uniformed personnel as
a 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 Washington; that to promote such dedicated and uninterrupted public
service there should exist an effective and adequate alternative means of settling
disputes.
DISCUSSION
It is first necessary to determine the appropriate set of comparables because that will help
determine which proposals should be selected under RCW 41.56.465 which, as related above,
provides for the:
comparison of the wages, hours and conditions of employment of personnel
involved in the proceedings with the wages, hours, and conditions of employment
of like personnel of like employers of similar size on the west coast of the
United States.
Establishing comparables here is somewhat difficult in part because of the County’s
unique geographic area. It is bordered on the west by the Hood Canal and on the east by Puget
Sound, and it is part of the Puget Sound area even though it is somewhat apart from other
contiguous counties. The Kitsap Peninsula also stands between Seattle which is the most heavily
populated city in the state and the Olympic Peninsula which is one of the least populated areas in
the state. In addition, the County only has a handful or so of incorporated cities with the rest
being large, unincorporated areas. The County also is to the west of the Cascade Mountains,
thereby separating it from counties to the east of the Cascade Mountains.
The parties disagree over what counties constitute proper comparables with the County
proposing one county which has a total population of about 155,100 (Benton County), and the
Guild proposing another county with a total population of about 744,000 (Pierce County).
Hence, while both parties agree that comparables must be of “similar size,” they disagree over
how that statutory term must be applied.
The term “similar size” is not defined in RCW 41.56.465. Nonetheless, it is well
established that that term is to be measured in part by a county’s total population and total
assessed valuation. A number of other factors are sometimes considered which relate to
geographic proximity, labor market, size of the bargaining unit, etc.
Ascertaining what constitutes a “similar size” in this case involves much more than a
precise mathematical formula. The parties recognize this because the County wants to use
Spokane County as a comparable even though its population is about 192,500 greater than Kitsap
County’s population, and the Guild wants to use Pierce County as a comparable even though its
population is about 504,500 greater than Kitsap County’s population. The term “similar size” in
this proceeding thus has a unique meaning which may not be applicable to other situations.
The parties have previously litigated what comparables are appropriate in the prior
interest arbitration proceeding heard by Arbitrator Rodger Buchanan who found that the
following counties constituted the appropriate pool of comparables: Whatcom County, Thurston
County, Clark County, and Snohomish County.(fn:3) In doing so, he ruled against the County’s
claim that Yakima County and Benton County represent appropriate comparables, and he also
ruled against the Guild’s claim that Spokane County represents a “secondary” comparable. He
stated:
____________
fn:3 See Kitsap County and Kitsap County Deputy Sheriffs Guild, Case No. 13261-1-97-283, 3
(1998).
. . .
Since the weight of the evidence presented in this case indicates that
Eastern Washington, which includes Spokane, Benton and Yakima Counties has a
substantially different type of economy than does Western Washington, it is
concluded that all three Eastern Washington Counties be eliminated from use as
comparables in this case.
Id., at 12-13.
. . .
He found merit to the Guild’s claim that Snohomish County is an appropriate comparable
because:
. . .
The inclusion of Snohomish County is a reasonable inclusion as a
“comparable” as its size, though substantially larger than Kitsap County in
population, is not so much larger as to cause it to be eliminated as a reasonable
“comparable”. In addition Snohomish County is included in the same geographic
area as is Kitsap County, the same urban area (Seattle) and located in what is
defined as the same “labor market” area.
. . .
Snohomish County, proposed by the Guild is located in Western
Washington and inside the Puget Sound labor market, as is Kitsap County, and is
an appropriate jurisdiction for use as a “comparable” in this case.
Id., at 13.
. . .
Here, the parties agree that Whatcom County, Thurston County, and Clark County are
appropriate comparables. Those comparables therefore are adopted.
However, the Guild wants to retain Snohomish County as a comparable and it wants to
add Pierce County. The County wants to add Benton County, Yakima County, and Spokane
County and claims that Snohomish County should be dropped as a comparable.
The Guild states that its proposed method for selecting comparables should be adopted
because the prior “selection method adopted in the parties’ prior interest arbitration decision
should be controlling in this case,” and because the “Guild’s remaining demographic factors
justify its list of comparables.” It contends that the local labor market should be given special
consideration in selecting comparables because “Arbitrators have recognized labor market and
geographic proximity as a factor in selecting comparables,” and because “Kitsap County is part
of the central Puget Sound labor market which should be awarded special consideration in
selecting comparables.” It also asserts that “A strict variance range advocated by the County
should be rejected,” and that the Guild’s proposed comparables are “more reasonable than the
County’s.”
The Guild adds that the County has not met its burden of proving that Arbitrator
Buchanan’s set of comparables should be overturned, and that: “A shift in the demographic
factors” in the last several years has pushed Kitsap and Pierce closer together “so that the new
circumstances now, through the application of Buchanan’s principles, call for adding Pierce
County.” The Guild also claims that comparables should be based in part on an unincorporated
basis because “The predominant service area of a County’s sheriff office is the unincorporated
area” since local municipalities must provide law enforcement services to their own citizens, and
because “The revenue available to pay for Deputy Sheriff services predominantly arises from the
unincorporated sections of the County.” The Guild also asserts that geographic proximity is
particularly important because Arbitrator Buchanan “heavily relied” on it,(fn:4) and that “the number
of officers is a good measure of comparability,” particularly the number of officers who work in
unincorporated areas.
_______________________
fn:4 The Guild cites the following arbitration cases where arbitrators have given special
consideration to close geographic proximity and where they have ruled that it offsets
dissimilarities in size: See City of Renton (Police), 71 LA271 (Snow, 1978); City of Pasco
(Police), (Krebs, 1990); City of Seattle (Police), (Kienast, 1984).
The County maintains that its proposed comparables “are similarly sized as required
under RCW 41.56.465 and constitute ‘like employers”’; that its proposed comparables "satisfy
the population and assessed valuation tests and are not result oriented”; and that they “are
similarly situated to Kitsap County and should be utilized as comparables.” It also argues that
the arbitration panel should follow a “principled approach” in applying RCW 41.56.465 rather
than relying upon Arbitrator Buchanan’s "summary and unsupported conclusions,” and that the
Guild’s proposed comparables should be rejected because its data is “unreliable” and because the
Guild’s reliance “on the population and assessed valuation for unincorporated area of the County
only is without precedent.” The County also asserts that Pierce County and Snohomish County
“are not comparable to Kitsap in terms of population, assessed valuation and size of
department. . .,” and that “The Guild’s comparables place too high an emphasis on the Central
Puget Sound area.”
The County adds that “The standard tool used by interest arbitrators in comparing
population and assessed valuation is the 50% up and 50% down rule,” but that this standard “did
not produce a sufficient number of comparable jurisdictions . . .,” which is why it “broadened the
upper band to include counties that were up to 100% larger than Kitsap County to derive a more
inclusive list of comparables.”(fn:5) The County also maintains that the Guild errs in trying to
exclude all counties on the eastern side of the Cascade Mountains because: “Eastern Washington
jurisdictions are routinely compared to jurisdictions in the western part of the state,” as it cites a
number of prior cases where arbitrators have selected comparables from both parts of the state
including one where Kitsap County and Yakima County were compared to Spokane County.(fn:6) It
further claims that Arbitrator Buchanan’s decision to include Snohomish County is no longer
binding because it “is not within the 50% down and 100% bandwidth discussed above,” and
because his decision is “no longer consistent with RCW 41.56 . . .,” as it cites Arbitrator Alan R.
Krebs’ decision in City of Bothell, (Krebs, 2000), where he found that changing circumstances
and the statute required rejection of a prior comparable. It also cites Arbitrator Krebs’ decision
in City of Anacortes, (Krebs, 2003), where he found that jurisdictions having twice the
population of a county are not comparable.
________________________
fn:5 The County cites a number of cases where such an upper band has been adopted. See
Yakima County, (Gangle, 2004); Whatcom County, (Gaunt, 2004); Thurston County,
(McCaffee, 1999); City of Poulsbo, (Gangle, 2002); City of Pullman, (Gaunt, 1997).
fn:6 See Spokane County, (Krebs, 1999). See also City of Kennewick, (Krebs, 1997);
Yakima County, (Gangle, 2004); City of Camas, (Wilkinson, 2003); Thurston County, supra.
As a general proposition, it is well recognized that comparables established in a prior
arbitration proceeding between the same parties should not be lightly disregarded because parties
need the stability and predictability that fixed comparables bring over time. That is why I
ordinarily am very reluctant to overturn previously-established comparables.
Here, though, both parties agree that I should not adopt all of Arbitrator Buchanan’s
comparables because, according to the Guild, Pierce County should be added and because,
according to the County, Snohomish County should be deleted and Spokane County, Yakima
County, and Benton County should be added.
A comparison of the total population and the assessed valuations of the disputed
comparables establishes the following:(fn:7)
Estimated
Jurisdiction Population Assessed Evaluation
2004 2004
Pierce 744,000 $49,371,343
Snohomish 644,800 $54,029,572
Spokane 432,000 $22,148,161
Clark 383,300 $27,461,074
Kitsap 239,500 $17,409,451
Yakima 227,500 $10,615,866
Thurston 218,500 $15,351.292
Whatcom 177,300 $13,069,730
Benton 155,100 $8,911,084
_________________
fn:7 This data is compiled fiom County Exhibits B.5 and B.7 and Guild Exhibits 19 and Guild
Replacement Exhibits 20 and 21.
Since Yakima County’s population is only about 12,000 less than Kitsap County’s
population, it certainly is of “similar size” to Kitsap County. Indeed, it is closer in population
than any other proposed comparable.
The parties also agree that Whatcom County is a comparable even though its population
is about 62,200 less than Kitsap County’s population. Hence, it is hard to see why Benton
County is not a comparable since its population is about 84,400 less than Kitsap County’s
population.
In addition, the Guild states that Snohomish County is a proper comparable even though
its population exceeds Kitsap County’s population by about 405,300 and its assessed valuation
exceeds Kitsap County’s assessed valuation by about $36,620,121. That being so, it is hard to
see why Spokane County- which the Guild proposed as a “secondary” comparable before
Arbitrator Buchanan - is not a proper comparable since its population is only 192,500 more than
Kitsap County’s population and its assessed valuation is only about $4,738,710 more than Kitsap
County’s evaluation.
The Guild cites City of Aberdeen (Police), (Axon, 2000), and City of Bremerton (Police),
(Axon, 1998), in support of its claim that only Western Washington state comparables should be
used. Those cases involved cities, which are much more numerous than counties, thereby
making it much easier to find similarly situated cities in Western Washington State. If there
were a sufficient number of similarly sized counties in Western Washington, I would select
them. The much smaller number of available counties, however, makes it necessary to look
throughout the state for counties which can be compared to Kitsap County because the three
agreed-upon comparables of Clark County, Thurston County, and Whatcom County constitute
too small a pool to provide an ample basis for comparison.
The Guild also asserts that Yakima County, Spokane County, and Benton County are not
proper comparables because Arbitrator Buchanan rejected them on the ground that they have a
“substantially different type of economy than does Western Washington,” and because there “is
no information in this record that would suggest that the nature of the eastern Washington
economy or these agencies have changed since this time” that would warrant revisiting this issue.
Arbitrator Buchanan did not cite any record evidence in support of his finding that the
Eastern Washington State economy is so different from the Western Washington State economy
so as to automatically warrant the exclusion of Spokane County, Yakima County, and Benton
County as comparables.
The economics are somewhat different because the area east of the Cascade Mountains is
generally more agrarian than the area west of the Cascade Mountains, and because the wages and
housing prices east of the Cascade Mountains are generally lower than the wages and housing
prices west of the Cascade Mountains.
The fact that there are some differences, however, does not mean that those differences,
standing alone, are sufficient to warrant the automatic exclusion of Eastern Washington
jurisdictions under RCW 41.56.465.
Given the need to find more than the three comparables which the parties have agreed to,
I conclude that possible comparables cannot be discounted merely because they are on the
eastern side of the Cascade Mountains, particularly since the record establishes that 10 deputies
have transferred from jurisdictions east of the Cascade Mountains, thereby showing that region
represents a recruiting area, (Guild Exhibit 106). This finding is consistent with other arbitration
awards where arbitrators have ruled that employers from both parts of the state represent proper
comparables.(fn:8)
_______________________
fn:8 See Yakima County (Gangle, 2004), where, in agreement with another Guild local,
Arbitrator Sandra Smith Gangle ruled that Kitsap County and Yakima County were comparables.
Arbitrator Krebs earlier determined that Kitsap County and Yakima County represent proper
comparables when compared to Spokane County. See Spokane County, (Krebs, 1999).
Arbitrator Kenneth M. McCaffree ruled that Benton County, Kitsap County, Spokane County,
and Yakima County and several other counties represent proper comparables when compared to
Thurston County. See Thurston County, (McCaffree, 1999). He also found that Pierce County
and Snohomish County did not represent proper comparables.
The Guild also asserts that “The County’s approach misses the mark because of its
overemphasis on total population and assessed valuation at the expense of the unincorporated
members which better reflect that the nature of the Kitsap County Sheriffs Department . . .” The
Guild therefore relies upon data showing there is a significant difference between the
unincorporated population and unincorporated assessed valuation of the disputed comparables
versus the total population and total valuation referenced about, (Guild Replacement
Exhibits 20-21).
The Guild, though, has not cited any prior interest arbitration case where unincorporated
population and unincorporated valuation figures took precedence over total population and total
valuation figures. There thus does not appear to be any arbitral support for the Guild’s claim.
Furthermore, RCW 41.56.465 does not refer to partial population size. It, instead,
mandates that comparables must be based upon “like employers of similar size” which can only
mean total population size regardless of whether that population lives in incorporated or in
unincorporated areas. I therefore find that it is only proper to consider a county’s total
population and total assessed valuation in determining which comparables are appropriate.(fn:9)
________________________________________
fn:9 See Mason County, (Axon, 2001), where Arbitrator Gary L. Axon rejected a union’s
claim that unincorporated areas should be used to determine population and assessed valuations
I thus conclude that Benton County, Spokane County, and Yakima County are
comparable because their total population figures and total assessed valuations are closest to
Kitsap County’s total population figures and total assessed valuations.
Turning now to Snohomish County and Pierce County, the County argues that they “are
not comparable to Kitsap in terms of population, assessed valuation, and size of department and
thus should be excluded.” It claims that they “fall outside the 50% down and 100% up rule on
both of the critical factors of population and assessed valuation”; that they “skew” the
comparables; and that they “are simply off the charts. . .” regarding department size because
they respectively have 256 and 277 members, as opposed to the 109 members in this bargaining
unit.
The Guild argues that both comparables are appropriate because they are part of the same
Central Puget Sound labor market as Kitsap County, and because they are in close geographic
proximity to Kitsap County. It adds that “There is no need to use a precise one-to-one or two-to-
one band. . . because a balanced list can be obtained through other means; that the County has
not put forward any evidence showing that Arbitrator Buchanan erred when he ruled that
Snohomish County is a proper comparable; that Pierce County is a comparable because it is “an
immediate neighboring County and the only other comparable within the Central Puget Sound
labor market. . .”; and that Kitsap County has grown so dramatically since the issuance of
Arbitrator Buchanan’s Award so that its population is now much closer to Pierce County’s
population.
As related above, Kitsap County’s population is about 239,500 as opposed to Snohomish
County’s population which is about 644,800, and Kitsap County’s assessed valuation is about
$17,409,451 versus Snohomish County’s assessed valuation of about $54,029,572. These are
very large differences.
But, those differences must be weighed alongside Arbitrator Buchanan’s ruling that
Snohomish County is a proper comparable because it is “included in the same geographic area as
is Kitsap County, the same urban area (“Seattle”) and located in what is defined as the same
‘labor market’ area.”(fn:10) The record here establishes that all of this is still true today.
______________________
fn:10 Buchanan Award, at 13.
Kitsap County, King County, Pierce County, and Snohomish County thus comprise the
Puget Sound Regional Council which coordinates regional planning and development. There is
considerable commonality among these counties regarding population growth; population
density; housing market; the relatively higher wages they offer; job opportunities; and local
economic conditions, (Guild Exhibits 41-42,46-49, 50-54, 76). All of these factors establish the
interconnectedness of these counties regardless of their size, as the Central Puget Sound area
serves as a common labor market. Thus, about 48 of the current deputies lived in Kitsap County
at the time of their hire, and about another 23 came from elsewhere within the area, (Guild
Exhibit 102).
Moreover, even though Snohomish County’s population is greater than Kitsap County’s,
the County itself has not rigidly adhered to its own 50% down - 100% up band since it
acknowledges that Benton County falls outside that band.
The need for balance also supports Snohomish County’s inclusion as a comparable.
Whatcom County borders Canada; Clark County and Benton County border the State of Oregon;
and Spokane County borders the State of Idaho. Given the wide geographic dispersal of these
other comparables, it is necessary to find another comparable closer to the County in order to
make sure that there is suacient data to reflect local economic conditions.
The deputies here, after all, must buy and maintain houses in the Puget Sound area as
opposed to some of the other far-flung comparables, which means that they must be able to
afford to do that. House prices are generally lower in most of the other comparables as seen in
Guild Exhibits 88, 97-98 which show the following medium home prices in the second quarter of
| County |
Median Home Prices |
| Benton |
$147,400 |
| Clark |
$182,500 |
| Kitsap |
$204,000 |
| Pierce |
$195,500 |
| Snohomish |
$248,000 |
| Spokane |
$127,100 |
| Thurston |
$184,000 |
| Whatcom |
$212,700 |
| Yakima |
$125,600 |
Kitsap County’s medium home price of $204,000 is much greater than the median home
prices for Benton County, Spokane County, and Yakima County which are $147,400, $127,100,
and $125,600 respectively. Newspaper Columnist Tom Kelly testified about Kitsap County’s
escalating housing prices, a trend he stated will continue for the indefinite fbture because of the
County’s growth and because “builders have discovered Kitsap.”(fn:11) Deputies here thus need to
earn more than some of their counter-parts elsewhere in the state in order to simply buy a house.
That is why it is important to select at least one comparable in the Puget Sound area to reflect
local economic conditions.(fn:12)
________________________________________________________________
fn:11 Transcript, at 178.
fn:12
See City of Kennewick, (Krebs, 1997), where Arbitrator Krebs gave special consideration
to geographic proximity because “it is particularly understandable that the employees of each
would be aware of the contractual benefits paid by their neighboring cities, and that such
awareness would affect their expectations,” which is why he added: “Neighboring jurisdictions
are often given special consideration when determining comparables.” The need for geographic
balance also was addressed in
Yakima County, supra, where Arbitrator Gangle ruled that Clark
County, Kitsap County, Thurston County, and Yakima County represented proper comparables
even though they were separated by the Cascade Mountains. It also was addressed in
City of
Pasco (Police), (Wilkinson, 1994).
I therefore conclude that Snohomish County represents a proper comparable.
Pierce County also is in the Puget Sound labor market and it would constitute an
appropriate comparable if its population were closer to Kitsap County’s population. However,
Pierce County’s population is about 505,000 greater than Kitsap County’s population, and about
99,200 greater than Snohomish County’s population.
It is true, as the Guild correctly points out, that Kitsap County’s population has grown
from the time of Arbitrator Buchanan’s Award and that Thurston County was recently
recognized as being comparable to Pierce County.
Nevertheless, I conclude that Pierce County does not constitute a proper comparable
because its population is simply too much larger than Kitsap County’s population and because
Snohomish County’s inclusion as a comparable helps provide the kind of balance that would
come from having Pierce County as a comparable.
Based upon the above, I thus conclude that the following counties represent the proper
comparables: Benton County, Clark County, Snohomish County, Spokane County, Thurston
County, Whatcom County, and Yakima County.
Having determined the comparables, it is now time to address each of the issues in
dispute. They are as follows:
RELEASE TIME FOR GUILD ACTIVITIES
The prior agreement did not specifically address which Guild activities qualify for paid
release time.
The Guild wants to add the underlined phrase to this part of the agreement to identify
which Guild activities would be covered by paid release time:
SECTION B - GUILD ACTIVITIES
1. The Employer shall allow reasonable time off with pay for Guild members
conducting official business
relating to the Guild’s function as a collective
bargaining representative; provided such time off shall be taken at the
consent of the Sheriff or his designee or by the authority of the Board of
County Commissioners and provided further that such consent shall not be
unreasonably withheld (Emphasis in original).
The County proposes that only certain Guild activities be covered by paid release time
via the following language:
SECTION B - GUILD ACTIVITIES
1. The Employer shall allow reasonable time off with pay for Guild member
conducting official
business that is vitally connected with the Employer’s
business; provided such time off shall be taken at the consent of the
Sheriff or his designee or by the authority of the Board of County
Commissioners and provided further that such consent shall not be
unreasonably withheld.
Examples of appropriate uses of release time
include participation in labor-management meetings, representing
employees in grievance meetings and other contract administration
matters. Guild officers and members will be charged annual leave or
leave without pay, if no accrued annual leave is available, when they are
absent from work to perform internal Guild business. In all instances,
before leaving the work area or otherwise devoting on-duty time to the
performance of Guild business, the Guild officers shall notify their
supervisor, obtain approval and notify their supervisor when they return
(Emphasis in original).
The Guild states that this part of the contract must be clarified “to comport with the
Washington State Public Employees Collective Bargaining Act, (PECBA), and the standard
adopted by PERC for permitting union release time” because the County in 2002 notified the
Guild that the prior language allowed for some “illegal activity” and because the County has
unilaterally changed the way the agreement has been applied. That led the Guild to file an unfair
labor practice complaint with PERC which is why it now asserts that “the appropriate forum for
this issue to be resolved is through PERC.” The Guild alternatively argues that its proposal
should be accepted because it is in line with “the current PERC standard”; because the County’s
proposal would not allow Guild members to meet ahead of time to prepare for contract
negotiations or to attend arbitration hearings; because “None of the comparables have such
restrictive release time. . .”; and because the pertinent release time language found in other
County bargaining units has no “bearing or relevancy in these proceedings.’’
The County states that its proposal should be adopted because “The current contract
language has led to abuse”; because “PERC precedent supports the reasonable limits set forth in
the County’s proposal”; because its proposal “promotes internal parity”; and because the Guild’s
own “comparability analysis supports the County’s proposal.”
In addressing this issue, it is first necessary to point out that the arbitration panel is not
being asked to determine what the prior contract language means and whether the County had
the legal authority to effectuate certain changes as to how that language should be implemented
and interpreted. It also is unnecessary to decide whether that prior language can be harmonized
under applicable state law since that is now a matter pending before PERC.
The parties’ conflicting proposals nevertheless are properly before the arbitration panel
for adjudication because both parties have the right to propose changes to the disputed language
at the expiration of the prior agreement regardless of what PERC does or does not do regarding
the prior language, and because PERC has expressly declined to remove this issue from this
proceeding, (County Exhibit A-11). As a result, and because PERC’s determination is not
needed to determine the merits of the newly proposed language, it is proper to do so here.
The County asserts that the current language has led to abuse because deputies in the past
took time off for Guild business without management’s approval or knowledge, and that they
have taken time off to attend Guild executive board meetings; to meet with the Guild’s attorney;
to attend training; and to testify for other bargaining units and to engage in other activities.
Regardless of whether any such “abuse” has occurred - an issue the arbitration panel
need not decide - it is clear that there is a wide gulf between the parties over the proper scope of
paid release time. It therefore must be stressed that the dispute herein does not involve unpaid
release time, as the County’s proposal provides for that.
Hence, the choice is between selecting the Guild’s wide open language providing for paid
leave time for any official business “relating to the Guild’s function as a collective bargaining
representative,” or the County’s more limited language which the County’s Brief, at 19, states
covers such matters as investigating possible grievances, attending contract negotiations, and
participating in investigatory interviews or Loudermill hearings. Undersheriff Dennis
Bonneville also testified that the County’s language provides for paid release time to attend
collective bargaining negotiations.(fn:13)
_________________________________________________________________
fn:13 Transcript, at 938. Given the County’s representations that its language allows for paid
release time to attend contract negotiations, its language is construed in that manner.
There are no internal comparables supporting the Guild’s proposal because six of the
other collective bargaining units do not even have any release time language, (County
Exhibit 1.3). Moreover, the agreements for the County’s Deputy Prosecutors and Juvenile
Detention only provide for paid release time to attend contract negotiations, and the Sheriff
Support and Sheriff Lieutenant agreements only allow partial release time for activities which
are vital to the Guild and the County. While the Guild claims that these internal comparables
should not be considered, they represent one of the factors normally considered in ascertaining
whether new contract language should be adopted.
There also are no external comparables supporting the Guild’s broad language, (Guild
Exhibit 212). Benton County and Yakima County have no contract language on this issue and
the remaining comparables do not provide for partial release time off for all union activities, or
for paid release time off to attend hearings relating to other bargaining units, or for paid release
time off to attend training. They instead have, to one degree or another, more limited language
governing when paid release time will be granted.
Since neither the internal nor external comparables support the Guild’s open-ended
proposal, and since the County’s proposal provides for ample paid release time with the
opportunity to also receive unpaid leave time, I conclude that the County’s proposal should be
adopted and that it shall become effective upon the issuance of the Award.
DISCIPLINE AND DISCHARGE - GRIEVABILITY OF TRANSFERS
The prior agreement did not specifically address whether disciplinary transfers could be
grieved.
The Guild wants to grieve disciplinary transfers by adding the word “transfer” to the
following language so that it reads:
SECTION O - DISCIPLINE AND DISCHARGE
Discipline is defined to include written reprimands, suspensions without pay,
disciplinary demotions to a lower paying classification, transfers and discharge
(Emphasis in original).
The Guild states that the term “discipline” must encompass “transfers” so the County
“does not have unlimited discretion to remove a deputy from a specialty assignment for whatever
reason. . .” it sees fit “despite the harmful consequences, both to one’s professional reputation
and pocket book.” It also claims that this is mainly a “housekeeping item” because other parts of
the contract state that all discipline must be for just cause and that the contract must be cleared
up because Ned Newlin, the Chief of Detectives and Support Services, testified at the hearing
that transfers represent a fundamental management right over which the County must exercise
exclusive control.
The County contends that the Guild has not met its burden of proving a “compelling need
to modify the contract”; that the Guild’s proposal “inserts ambiguity into the contract where none
previously existed”; and that its proposal would “substantially erode the Department’s right to
‘designate the work functions to be performed’ as provided for in the management rights clause
of the parties’ agreement.”
In order to modify existing contract language, it is well established that a moving party
has the burden of proving that there is a need for change and that its proposal reasonably
addresses that problem.
The Guild has failed to meet this burden because it has not cited one example of where an
officer was improperly transferred because of disciplinary reasons. In addition, no internal
comparables support the Guild’s proposal and, with the possible exception of Benton County,
none of the external comparables expressly provide for the grieving of transfers, (Guild
Exhibit 213; County Exhibits 2.2 and 2.3). Hence, it is not clear whether transfers can be
grieved under those agreements. Furthermore, the Guild’s proposal could lead to grieving all
transfers even though they may not involve discipline, thereby interfering with the County’s
legitimate need to effectuate transfers for legitimate operational reasons which are unrelated to
discipline.
I therefore conclude that the Guild’s proposal should be rejected.
DISCHARGE AND DISCIPLINE: GRIEVING WRITTEN REPRIMANDS PAST THE
SECOND STEP
The prior agreement allowed employees to grieve written reprimands through all steps of
the grievance procedure including arbitration.
The County wants to discipline employees for violating the Employer’s Code of Conduct
and it also wants to prevent employees from grieving written reprimands after the second step by
proposing the following language:
SECTION O - DISCIPLINE AND DISCHARGE
Discipline is defined to include written reprimands, suspensions without pay,
disciplinary demotions to a lower paying classification, and discharge.
Employees may be disciplined, among other reasons, for violating the Employer’s
Code of Conduct, set forth in Appendix C of this collective bargaining agreement.
Written reprimands may only be grieved through Step 2 of the grievance
procedure (Emphasis in original).
The County states that its proposal is needed to incorporate the parties’ agreed-upon
Code of Conduct, and that written reprimands should not be grieved past the first two steps
because “the first two steps of the grievance procedure include a thorough investigation and
review by the Undersheriff.” That, claims the County, “provides a sufficient mechanism. . .”
and thus “reserves the full arbitration procedures for more serious disciplinary actions that
involve loss of pay or property rights.”
The Guild, while not objecting to the first two sentences in this proviso,(fn:14) objects to the
third sentence because “the Undersheriff would have the final say in the matter”; because a letter
of reprimand “could, and likely would be relied upon in a later more serious disciplinary action,”
thereby preventing the arbitrator from determining whether “the letter of reprimand was truly
given for just cause”; and because Chief Newlin testified that the Department would rely on
written reprimands in determining whether to impose more severe discipline.
___________________
fn:14 Transcript, at 1019.
Again, it must be pointed out that the County as the proponent of this change bears the
burden of proving that it is needed. It has failed to meet its burden because this record is barren
of any evidence showing that grieving past the second step of written reprimands has ever posed
a problem in the past. In addition, progressive discipline presupposes that an employer has just
cause for imposing all disciplinary measures particularly where, as here, written reprimands can
ultimately lead to termination. That is why it is essential under the just cause standard to allow
affected employees to grieve and possibly arbitrate all actions that can lead to that result.
The County therefore is wrong claiming that its proposal “reserves the full arbitration
procedures for more serious disciplinary actions that involve loss of pay or property rights.”
Written reprimands, if left unchallenged, also can lead to the “loss of pay or property rights”
even though that may not be immediately the case. That is why deputies who receive written
reprimands are entitled to have their discipline reviewed by a neutral decision maker under the
just cause standard.
In addition, the County cannot point to any external comparable which limits the
grievance procedure in this fashion.
For all these reasons, this part of the County’s proposal is rejected. The new agreement
therefore shall only contain the first two sentences of the County’s proposal, as the Guild does
not object to them.
WAGES
The Guild proposes 4% across-the-board retroactive step increases in the salary schedule
for all bargaining unit members effective January 1, 2003, January 1, 2004, and January 1, 2005.
The County’s wage proposal, as modified, does not provide for retroactivity. It, instead,
provides for a 4.9% wage increase upon the issuance of the Award which will be paid for the
remainder of 2005. Its proposal reads: (fn:l5)
___________________________________________________________
fn:15 The County explained at the hearing that its written proposal must be read in conjunction
with its September 28, 2004, cover letter stating that the retroactive feature of its written
proposal should be disregarded. Transcript, at 91.
. . .
1. 2003 wage adjustment. Effective with the first full pay period following
Guild ratification of this Agreement. all steps in the 2002 salary schedule shall be
increased across the board by 2.1%, which is equal to one hundred percent
(100%) of the first half Semi-Annual, Seattle - Tacoma-Bremerton Area, CPI-U,
for 2002 as compared to the first half Semi-Annual index, Seattle-Tacoma-
Bremerton Area, CPI-U, for 2001. Effective July 1, 2003, add an additional
step 7 to the Sergeants pay grade, set 2.5% above Step 6.
2. 2004 wage adiustment. Effective with the first full pay period beginning
on or after January 1. 2004, all steps in the 2003 salary schedule shall be
increased across the board by ninety percent (90%) of the first half Semi-Annual,
Seattle-Tacoma-Bremerton Area, CPI-U, for 2003 as compared to the first half
Semi-Annual index, Seattle-Tacoma-Bremerton Area, CPI-U, for 2002.
3. 2005 wage adiustment. Effective with the first full pay period beginning
on or after January 1, 2005, all steps in the 2004 salary schedule shall be
increased across the board by ninety percent (90%) of the first half Semi-Annual,
Seattle-Tacoma-Bremerton Area, CPI-U, for 2004 as compared to the first half
Semi-Annual index, Seattle-Tacoma-Bremerton Area, CPI-U, for 2003.
(Emphasis in original).
The Guild states that its 4% wage proposal for each year of the new agreement should be
adopted because it is supported by the external comparables and the “settlement trends”; because
the CPI should be given less consideration that usual; because internal wage comparisons should
be considered and serve as a “base line”; and because economic and fiscal conditions “support its
proposals as do deputy retention and recruitment.” The Guild also contends that “Wage
comparisons cannot be fairly made just by taking one point in the pay scale,” and that it is
necessary to look at other factors such as education and longevity premiums. It claims that the
deputies here with five year’s experience “find themselves considerably behind their market”
because they are 9.33% behind at the A.A. mark and 10.31% behind at the B.A. level” and that,
“Even at the 10 year mark, the County’s preferred point of comparison, the deputies still find
themselves almost 5.5% behind the comparables at the A.A. level and 6.33% behind the B.A.
mark.”
The Guild adds that adoption of the County’s wage proposal would widen the wage gap
and lead to “catastrophic results” because it would still leave deputies at the five year mark about
5.63% behind at the AA level and 6.6% behind at the BA level. It also claims that the County’s
own comparables show that the deputies here at the five year level are about 6.5% and 7.33%
behind Spokane County, Yakima County, and Benton County (Guild Replacement Exhibit 119).
The Guild also states that the County’s “net hourly wage” methodology is flawed because of
errors; because of its over-reliance on the eastern Washington comparables; because the
County’s analysis only looks at a one-year interval; and because the County has not performed
any similar analysis for the Guild’s proposed comparables. The Guild also contends that while a
“net hourly wage analysis has been adopted in fire arbitration decisions because of the variations
in the work periods and leave arrangements,” it is improper to use such an analysis in police
arbitrations because police follow fairly set schedules.
The County states that the Guild’s 4% across-the-board retroactive wage increases
represent an additional cost of $1,592,738 over the base wages alone, (County Exhibit 3.5.2),
which is much more than its own projected $455,122 wage increase. It adds that “The overall
cost of the Guild’s proposal cannot be justified” because the Guild did not perform a cost
analysis of its own proposal; because its overall cost is “overwhelming”; and because all of the
Guild’s proposals would increase the County’s expenditures over a three-year period by
$3,907,803, a 50% increase, (County Exhibit 3.5.2). The County’s estimate includes $751,500
which it states is the cost of converting to the Guild’s mandatory 4-10 work schedule. The
County adds that for comparison purposes it has used the top step for a deputy who has an AA
degree and 10 years of service; that the net hourly compensation rates in 2002, 2003, and 2004
were higher than its six comparables; and that its proposal would result in keeping that rate ahead
of the comparables. The County also asserts that the Guild’s comparability data is “seriously
flawed.”
It adds that its proposal - which provides for a 2.1% lift in 2003, a 1.8% lift in 2004, and
a 1.2% lift in 2005 - is supported by the external and internal comparables and the Seattle CPI-U.
It also maintains that “The fiscal resource factor does not support the Guild’s wage demand
because the County’s reserve budget reflects past “difficult cost-cutting measures”; because its
current budget “reflects a fair and reasoned approach given the competing demands of the
budget”; because the County must be “conservative in budgeting given the likely loss of the
significant Silverdale revenue contribution”; and because the Guild’s evidence “does not justify
deviating from the budget or reducing the reserve balance.” The County also states that the
turnover evidence does not support the Guild’s wage proposal and that serious crime is down.
Both parties thus claim that their respective wage offers are supported by employee
turnover and the number of new applicants. The Guild states that the County’s recruitment
numbers are down from a decade ago and that the County over the last few years has had fewer
qualified candidates for openings which it claims is caused by the County’s low wages, (Guild
Exhibits 185-186). The County asserts that it has experienced very low employee turnover and
that it has not experienced any difficulties in recruiting, thereby showing that it’s current wage
and benefits package is adequate, (County Exhibit 3.6.1).
The record shows that while there were 154 test applicants in July 1995, there were only
57 applicants in 2003. But, there may be other reasons for that drop since Detective Roger
Howerton acknowledged that “it also appears that law enforcement may not be as high on some
people’s list anymore as others,” and that “we found a shift in the amount of people that are
getting into the public sector, especially in law enforcement.”(fn:16) County Personnel Analyst Dan
Darling, who administers the civil service examinations for the Sheriffs Department, added that
the County is still getting quality candidates from the civil service registers being developed.(fn:17)
In addition, 12 out of the County’s last 17 hires transferred from other departments.(fn:18)
________________________________________________
fn:16 Transcript, at 294.
fn:17 Transcript, at 624.
fn:18 Transcript, at 622-623.
The County has the better argument on this point because there is no sign that any
deputies left County employment as a result of low wages, and because the record shows that the
County has been able to hire new hires under its current wage package even though there are
fewer job applicants than a decade ago.
The wage proposals here must be considered within the larger context of the parties’
other economic proposals involving step increases, longevity, assignment pay, educational
incentive, shift differential, court-time pay, etc., in order to know the overall costs of each party’s
economic package; to see how they measure up against the CPI, external and internal
comparables; and whether the County should pay for all that is being sought.
The County has costed out each of the Guild’s following proposals as follows,
(Replacement County Exhibit 3.5.2):
. . .
Cumulative Costs
| |
1st Year |
2nd Year |
3rd Year |
Total |
| Deferred Compensation (2% annual wage) |
$129,166 |
$134,333 |
$139,706 |
$403,205 |
| Shift Differential (1.5% base pay) |
$45,141 |
$46,947 |
$48,825 |
$140,913 |
| Step Compression |
$35,470 |
$43,220 |
$35,072 |
$113,762 |
| Longevity Bonus Increase (0.5% - 1.0%) |
$26,120 |
$27,165 |
$28,251 |
$81,536 |
| Assignment Pay Increase (0.5%) |
$7,394 |
$7,690 |
$7,998 |
$23,083 |
| Assignment Pay for Traffic Unit |
$22,794 |
$23,706 |
$25,640 |
$72,140 |
| Premium Pay for all Holidays (add 6) |
$41,463 |
$43,122 |
$44,847 |
$129,432 |
| Mandatory 4 X 10 Schedule* |
Proposal not |
retroactive |
$808,738 |
$751,500 |
| Education Incentive (2%**) |
$129,166 |
$134,333 |
$139,706 |
$403,205 |
. . .
The Guild has not costed out its proposals. It questions the County’s figures and asserts
that its 4-10 work schedule actually could save money rather than costing $750,000 as the
County claims. It also claims that since it has dropped its deferred compensation proposal, the
County will not have to spend the $403,000 it claims will have to be spent on this item, and that
the remaining difference in costs is “exacerbated” by the County’s refusal to make its wage offer
retroactive, and that if the County’s offer were retroactive, that alone would generate an
additional $698,271.
But even when these matters are considered, it still appears - in the absence of any
rebuttal evidence to the contrary - that the Guild’s proposals relating to shift differential,
longevity, assignment pay, and education incentives call for about 1.5%, 0.5% - 1.0%, 0.5%, and
2% increases which total about 4.5% - 5.00% a year. That does not include the percentage
increases for step compression, assignment pay for the Traffic Unit, and premium pay for all
holidays which appear to total about another 1.5% a year. All of these separate economic
proposals thus total about 6% - 6.5% a year and about 18% - 19.50% over the term of the
agreement.
When those proposals are added to the 12% across-the-board wage increases the Guild is
proposing over the term of the agreement, it appears that the Guild’s total economic package for
three years is about 30%.
That is well in excess of the CPI which was 2.1% in 2002, 1.8% in 2003, 1.3% in 2004,
and the estimated 0.1% in 2005, (County Exhibit 3.3.2).
The County’s proposal, though, is less than the CPI because while it lifts wages by 4.9%
upon the issuance of the Award,(fn:l9) it does not provide for any retroactivity for 2003 and 2004
when the CPI rose about 3.1% without compounding. Deputies under the County’s proposal
therefore would not receive any wage increases for those two years and the first quarter of this
year.
______________________
fn:19 Since at least one quarter of the year will be over by the time the Award issues, and since
the County’s proposal does not provide for retroactivity, this 4.9% lift does not represent the
actual increase that will be paid out in 2005. The actual wage increase paid out in 2005 will be
about three quarters of that figure - i.e., slightly below 4%.
The Guild claims that the CPI “should be heavily discounted or entirely disregarded . . .”
because the CPI “numbers are clearly out of line with the average settlements among the
proposed comparables,” and because the County’s wage proposal does not match the CPI over
the years of the new agreement.
Since RCW 41.56.465(d) mandates consideration of the CPI, it cannot be “entirely
disregarded.”
The Guild correctly points out that the County’s financial situation has greatly improved
over the last several years since it had $12,960,0000 in its General Fund Balance in 2004 which
Budget Manager Rich Hanna was quoted as saying in a local newspaper could rise up to
$15,500,000 by the end of 2004, (Guild Exhibit 262). He also was quoted as saying that the
County’s revenues were coming in faster than the County could spend it.
The County claims that Hanna’s comments were contrary to the evidence adduced at the
hearing, and it points out that some of the people who heard his comments state that he was
joking when he said the County was taking in money faster than it could spend it. See Affidavits
of Patty Lent, Chair of the County’s Board of Commissioners, and Barbara Stephenson, County
Treasurer, (County Supplemental Exhibit 3.8).
But, while the Guild depicts the County as a cash cow, that does not necessarily mean
that the County can pay for all of the Guild’s economic demands.
County Administrator Malcolm Fleming explained that the County faced severe financial
problems in 2003 and that it has built up its reserves through considerable fiscal discipline and
fiscal sacrifice. That is why, said he, it implemented about $5,000,000 in cost savings measures
which included eliminating about 41 positions through layoff and attrition; imposing a hiring
freeze; reducing hours; and freezing salaries for commissioners, elected officials and department
directors. The County also extended the replacement cycle on its equipment and vehicles, and it
reduced spending on travel, training and supplies. The County’s fiscal problems led to a
referendum in November 2002 where voters were asked whether their property taxes should be
raised. The referendum was defeated.
Fleming added that the County also has faced, and is facing, very difficult economic
pressures from unfunded state mandates; higher health insurance costs; the loss of funding
created by Initiative 747 which capped property tax increase for existing homes and businesses;
the loss of funding created by Initiative 695 which eliminated the motor vehicle exercise tax,
thereby costing the County about $800,000 a year in lost revenue; increasing the staffing for law
enforcement; and paying higher pension contributions of $1,200,000 in 2005. In addition, the
County can eventually lose about $12,100,000 in annual revenues if Silverdale, the largest
commercial center in the County, ever decides to incorporate.
This larger picture shows that the County must be extremely careful in how it spends its
revenues, and that it is of the utmost importance that the County not needlessly spend the money
it currently has. In addition, the County properly adds that the inquiry here must focus on the
County’s economic condition throughout the term of the 2003-2005 agreement rather than on
what the future may hold. Hence, little weight can be given to the Guild’s claim that recent
“settlement trends” for 2005 support its offer, as those “trends” do not reflect the prior fiscal
climate that existed in 2003 and 2004 when the County was facing greater fiscal pressures.
Turning now to the comparability data, it shows that the deputies at the five year mark
are about 6.5% behind the average comparables, (excluding Snohomish County), at the AA mark
and 7.33% behind the average external comparable at the BA mark, (Guild Replacement
Exhibit 119). Deputies in 2004 thus received $266.94 less than the average comparables at the 5
year, no degree mark; $290.78 less than the average comparables at the 5 year, AA degree mark;
and $335.28 less than the average comparables at the 5-year, BA degree mark.
The Guild’s data also shows that deputies at the ten year mark in 2002 received $97.73,
$106.71, and $151.20 less at the no degree, AA, and BA marks, (Guild Replacement
Exhibit 119).
The County claims that the “Guild’s base data is incorrect and misleading . . .” because it
“compares 2002 wages for the bargaining unit with wages provided in 2003 and 2004 for the
comparable employers. . .,” and that “it is more appropriate to compare wages for the County
with wages awarded in the same year by the comparables as the County has done.”
While the Guild’s figures are not as precise as possible because they co-mingle 2003 and
2004 wage rates for the same year, they are accurate enough to establish that deputies at the five
year mark were, and are, behind the external comparables. Indeed, they were behind the
County’s own comparables of Benton County, Spokane County, and Yakima County, all of
whom paid their deputies more than the County at the five year mark. In addition, deputies will
not be receiving any actual wage increases for those years under the County’s proposal, and it is
fair to compare how far deputies were actually behind in those years and whether retroactivity is
needed.
The County does not focus on the five year mark and, instead, looks at the top deputy
step with an AA degree at the ten-year mark for benchmark wages via a chart which does not
include Snohomish County, (County Exhibit 3.2.1). That chart does not compare hourly wages.
It, instead, uses a “net hourly compensation rate” which is based upon the number of annual
scheduled hours minus vacation and holiday time, which the County claims is an “apples-to-
apples” comparison. The County thus claims that the deputies here were receiving 3.57% above
the average of the comparables in 2002. The County repeats this exercise for 2003,2004, and
2005, (County Exhibits 3.2.2, 3.2.3, and 3.2.4), which reveals that the deputies here were 2.74%
above the average comparables in 2003; 1.76% above the average comparables in 2004; and that
they will be .67% above the average comparables in 2005.
In support of this methodology, the County cites two cases where it has been adopted in
the past:
King County Fire District #44 (Wilkinson, 2002);
City of Kelso (Lankford, 2001).
Those cited cases involved firefighters who, as the Guild points out, often have irregular
work schedules which make it very different to compare their hourly wages with the hourly
wages paid to other firefighters. Here, though, law enforcement personnel have more regularized
work schedules which make it much easier to compare hourly wage rates, and that is the way
hourly wage rates have been traditionally determined for law enforcement groups.
In addition, Labor Relations Manager Gudmundson acknowledged that he did not use the
actual wage figures which were ultimately established for several comparables which were
unsettled when he prepared the data. He, instead, decided “to make a guess on where other
people would settle . . .,” and he used the 1.6% and 2.1% figures the County is using here for
2003 and 2004. He also used those numbers in extending out the 2005 wages. He agreed that
using the actual wage figures for Thurston County and Whatcom County would have raised the
comparability figures higher.(fn:20)
_________________________________________________
fn:20 Transcript, at 548-549.
A comparison with the external wage settlements, (Guild Exhibits 131, 135, and the
recently issued
Yakima Award(fn:21)), shows the following:
______________________
fn:21 The Yakima County wage increases were effective on July 1, 2003, and January 1,2004.
| County |
2003 |
2004 |
2005 |
| Benton |
3.50% |
2.50% |
N.S. |
| Clark |
3.50% |
N.S. |
N.S. |
| Spokane |
3% |
N.S. |
N.S. |
| Snohomish |
N.S. |
N.S. |
N.S. |
| Thurston |
3% |
3% |
6.50% |
| Whatcom |
4% |
3% |
3.00% |
| Yakima |
2.25% |
4.5% |
|
All of these wage increases, obviously, are greater than the County’s zero across-the-board wage increases for 2003 and 2004.
The County asserts that these wage increases are not reliable because “standing alone”
they do “not tell the Arbitration Panel anything that would constitute a reasonable wage increase
in Kitsap County” because such increases “must be analyzed in the context of the comparability
of the current wage increase in the cost of living, department turnover, labor market conditions,
and the other terms of the parties’ agreement, etc.,” particularly when the County “is already at
or near the comparables.”
Wage increases often are influenced by the kind of factors listed by the County which is
why it is difficult to ascertain at a distance why wage increases - and many other bargaining
items for that matter - have been agreed upon.
Nevertheless, by selecting the comparables above, we do know that the CPI for all the
comparables was generally the same and that the other comparables have faced the same kind of
fiscal pressures caused by the passage of Initiative 749 and Initiative 695, and some of the other
matters alluded to in Fleming’s testimony. In addition, it is unnecessary to know the precise
details of how something has come about in a particular collective bargaining relationship
because it is the whole picture that counts, not just one small piece of the picture. That is why
comparables, despite whatever shortcomings they may have, are so valuable in the composite.
A comparison with the internal wage settlements, (County Exhibit 3.4.2), shows the
following:
| UNIT NAME |
2004 |
2003 |
| AFSCME 1308-Courthouse (includes Security) |
2.00% |
2.75% |
| OPEIU Juvenile Detention/CRC |
2.00% (1/12/04) 1.00% (7/12/04) |
2.00% |
| AFSCME 1308-Supervisors (Formerly AFSCME) |
2.00% |
2.75% |
| 911 Employee's Guild/CENCOM (Formerly AFSCME Courthouse) |
|
|
| Teamsters 589 Facilities, Parks & Recreation |
2.00% |
2.10% |
| Sheriff's Lieutenants-IUPA (Formerly Non-Represented) |
2.00% |
2.10% |
| Sheriff's Support Guild |
2.00% |
2.75% |
| Corrections Officers Guild (Formerly AFSCME) |
7.00% |
0.00% |
AFSCME 1308-Corrections Sergeants (Formerly
Corrections Sergeants Association |
2.88% |
2.10% |
| Non-Represented Employees |
2.00% |
2.75% |
| AFSCME 1308-Deputy Prosecuting Attorneys |
2.00% (1/12/04) 1.00% (7/12/04) |
2.75% |
| Council Public Works-Laborers + IAM & AW |
2.00% |
2.10% |
| Teamsters 589 Public Works-Wastewater |
2.00% |
2.10% |
The County claims that no wage increases are warranted here for 2003 and 2004 because
the deputies already are near the top of the market comparables and because they received
greater wage increases than the CPI and almost all of the other internal bargaining units between
1994 and 2002, (County Exhibit 3.4.1).
As related above, deputies in fact are below the external comparables at the five year
mark, and I also find that they are below the external comparables at the ten year mark, (Guild
Replacement Exhibit 119).
As for the past, the County’s data shows that the deputies’ wages between 1994-2005
would exceed the CPI by $1.38 per hour or 24.7% if the County’s proposal is granted, (County
Exhibit 3.3.3). In addition, the deputies over the last three contract periods increased their pay
by 37.58% and those increases were 7.87% higher than the wages paid to the Courthouse unit,
the County’s largest bargaining unit, (County Exhibit 3.4.2).
However, that data does not reveal the whole story because the deputies in 1995 gave up
shift differential pay and shooting pay in exchange for higher wage increases which the County’s
data does not show. Measured from 1995 as opposed to 1994, wages therefore out-paced the
CPI by only 2.8%. In addition, the County’s data does not include reclassifications which can
generate considerable wage increases and which are far more prevalent in the other internal
bargaining units, and it also does not show how much money was added to the top of the wage
scale.(fn:22) Moreover, Fleming acknowledged that about $600,000 was awarded to the Courthouse
bargaining unit because of a market wage study and that that figure, which may be increased in
the future, is not reflected in the County’s data. The wage figures for some of the County’s
bargaining units therefore may be too conservative.
__________________________
fn:22 Transcript, at 613-614.
This wage issue thus boils down to whether the Guild’s 4% across-the-board wage
increases should be granted when they exceed the CPI; when they exceed the wage increases
granted to most of the internal comparables; and when they stretch the outer limits of what the
County can afford.
While these factors weigh against the Guild’s wage proposal, the record also shows that
there is a need for catch-up, and that the County’s failure to offer a wage increase in 2003, 2004,
and for at least the first quarter of 2005 does not keep up with the CPI for that time period. The
issue of no-retroactivity is particularly important because all of the external and internal
comparables which have reached agreements have granted wage increases in those years and
because the County has not offered a persuasive case as to why retroactivity should not be
granted. As a result, I conclude that these latter factors outweigh the former and that the Guild’s
wage proposal should be adopted.
Those wage increases, which shall be compounded, therefore will become effective in the
first full pay period following the issuance of the Award.
STEP INCREASES: SERGEANTS NEW STEP
The wage schedule in the prior agreement had six steps.
The Guild wants to compress the time it takes to obtain Step 4 and 5 increases via the
following language:
SECTION B - EXPERIENCED BASED PAY INCENTIVES
1. Experienced based pay increases shall be given based on length of
employment.
2. An employee shall be advanced into step level two (2) through step level
four (4) six (6), twelve (12) months after the initial hiring date and twelve
(12) months after the preceding advancement
and into step level five (5)
through step level six (6), twenty four (24) months after the preceding
advancements. (Emphasis in original).
3. Length of employment required for step advancement shall be based on
compensable hours only.
The County proposes to add a Step 7 to the Sergeant’s pay scale which is 2.5% over
Step 6, and to make it retroactive to July 1, 2003,(fn:23) via the following language:
____________________
fn:23 Transcript, at 1247, 1281.
SECTION B. EXPERIENCED BASED PAY INCENTIVES
1. Experienced based pay increases shall be given based on length of
employment.
2. An employee shall be advanced into step level two (2) through step level
four (4), six (6), twelve (12) months after the initial hiring date and twelve (12)
months after the preceding advancement and into step level five (5)
through step level six (6),
and above,twenty four (24) months after the preceding
advancement. (Emphasis in original).
3. Length of employment required for step advancement shall be based on
compensable hours only.
The Guild states that the data “strongly supports” its proposal because all five of its
cornparables “now provide for deputies to reach the journeyman level wage after the successful
completion of five years,” (Guild Exhibit 109), thereby making the County “a marked outlier.”
It argues that the deputies here “move through their current step system at a slower rate” and that
this contributes to the “sizeable” wage gap at the five year level, which is putting the County at a
disadvantage in hiring new deputies. The Guild also claims that the County’s proposal to add a
step for sergeants pay marks a “wrong direction by extending the time it takes to get to the top
step, exacerbating the situation,” and that the County’s proposal at least recognizes “the
existence of a wage gap.’’
The County states that its comparables support its proposal because that will place it
“slightly above the average of its comparables” for the top step sergeant pay. It also objects to
the Guild’s proposal aimed at compressing in half the amount of time it takes to progress to
Steps 5 and 6 on the grounds that “the Guild’s proposal is inconsistent with the sergeant pay
offered by the comparable jurisdictions,” and that the Guild’s proposal is also “wholly
inconsistent with the internal comparables” because most County step increases are based upon
24-month time periods.
As related above, deputies at the five year mark are behind the comparables. Deputies
here also progress through the step schedule at a slower rate than their counterparts within the
comparables, all of which provide for a five year journeyman rate.
The Guild’s proposal, however, calls for full retroactivity which the County estimates
will cost about $113,762 over the three-year agreement, (County Replacement Exhibit 3.5.2).
Although the County has not put a percentage price on this proposal, it appears to be a little less
than 2%.
That cost must be weighed alongside the County’s alternative proposal to retroactively
add a Step 7 to the wage schedule for sergeants which the County calculates will cost about
$28,568 over the life of the agreement. The problem with the County’s proposal is that it will
further elongate the wage schedule.
If the deputies were not being granted such a sizeable wage increase, I would adopt the
Guild’s proposal because the data on comparability is so overwhelming. The 12% wage increase
being granted, however, should help alleviate the wage compression problem. In addition, I am
extremely reluctant to not grant the added sergeant’s pay requested by the County since it
provides for retroactivity and since the Guild acknowledges that sergeants are “slightly behind
the market.(fn:24)
_______________________________________
fn:24 Transcript, at 648.
On balance, I find that the latter factors outweigh the former and that the County’s
proposal regarding sergeant’s pay should be adopted, and that the Guild’s proposal to compress
the wage schedule should be rejected. The County’s proposal shall be made retroactive to July 1,
2003.
LONGEVITY BONUS
The Guild proposes to increase the amount of the longevity bonus provided for in the
prior agreement via the following language:
SECTION D - LONGEVITY BONUS
. . .
2.
[Effective with the first full pay period beginning on or after January 1,
2002 Incorporate terms of MOU. . .] and upon completion of the following
years of employment, Employer shall pay employees, as an annual
longevity bonus, the amounts which follow, to eligible employees at the
pay period which follows the anniversary date of employment:
7 years of employment ..................... 1.50% of annual salary
10 years of employment ....................
2.00 2.5% of annual salary
15 years of employment ....................
3.00 4.0% of annual salary
20 years of employment ....................
4.00 5.0% of annual salary
25 years of employment ....................
5.00 6.0% of annual salary
. . .
4. The longevity bonus shall be based upon continuous employment,
exclusive of those periods wherein an employee is placed upon a leave
without pay status;
provided, when an employee is laid off, as a result of a
reduction in force (RIF), or placed on permanent medical disability, and
rehired and the separation does not exceed one (1) year, the longevity
bonus shall be computed from the initial employment date; provided
further, when an employee separates from employment and is
subsequently rehired & the separation does not exceed thirty (30) days,
the longevity bonus shall be computed from the initial employment date.
An employee who separates from employment and is subsequently
rehired, and the separation exceeds thirty (30) days, shall receive full
employment credit for actual past period(s) of active service.
The County does not propose to change the existing longevity payment. It, instead, only
wants to delete prior outdated language relating to the 2002 rates as a “house-keeping” measure,
which the Guild does not oppose.(fn:25)
_________________________________________________________
fn:25 Transcript, at 651-652.
The Guild asserts that its longevity proposal should be adopted because the comparability
data “strongly supports such an increase,” and because “the senior officers who have remained
with the department provide a demonstrated value to the County.” It argues that the situation
“becomes dramatically worse when the total available premiums . . .” of education and longevity
are combined because the County does not offer any education premium. And, in response to the
County’s argument that longevity increased in the last labor agreement and thus should not now
be changed, the Guild responds: “Wages and premiums, however are dynamic amounts
constantly being adjusted, and the statute requires the arbitration panel to at least bring Kitsap
County up to the average of the comparables.”
The County argues that the “Guild’s proposed increase is not warranted in light of the
recent 2002 adjustment” which increased longevity pay up to 2.5% in some areas. It also asserts
that the Guild’s proposal “undermines internal consistency” and is not supported by the external
comparables, and that the County already pays between 4% to 11% above the average in
comparable jurisdictions. The County estimates that the total cost of the Guild’s proposal is
$81,536 which represents between a 0.5% - 1% wage increase, (County Replacement
Exhibit 3.5.2).
The longevity payments here are tied to a deputy’s wages which, as related above, will
rise 12% over the term of the agreement. Deputies thus will receive increased longevity pay
even if the longevity provision of the agreement is not changed. Given that automatic increase
and the 12% across-the-board raises already granted, and given the further fact that longevity pay
was increased in 2002, I conclude that the longevity pay should not be increased.
The Guild’s proposal is therefore rejected. The County’s proposal, which only makes a
minor “housekeeping’’ change, is adopted and it will become effective in the first full pay period
following the issuance of the award.
ASSIGNMENT PAY
The prior agreement provided for assignment pay of $135 per month for certain
classifications.
The Guild proposes that the County increase its assignment pay from $135 per month to
4% of the employee’s base hourly pay, and that assignment pay be paid to members of the
Traffic Unit via the following language:
SECTION 3 - ASSIGNMENT PAY
Employees within the classification of deputy sheriff who are assigned to the
following job functions shall receive
$135.00 per month as assignment pay.
Effective January 1, 2001, the rate for this assignment pay shall be changed from
$135.00 per month to 3.54.0% of the employee's base hourly pay
for the pay
period.
a. Detective
b. Investigator
c. K-9
d. Bomb Technician
e. Search & Rescue
f. Field Training Officer
g. Traffic Unit
The County proposes to pay on a non-retroactive basis a flat 3.5% premium in lieu of the
current $135 per month, and to add Traffic Collision Specialist to the current list of assignments
receiving premium pay conditioned upon them maintaining certification and actually performing
that work.(fn:26) It also proposes that only one premium pay be paid at a time, and that the Field
Training Officer be paid only for the shifts he/she serves in that capacity via the following
language:
_________________
fn:26 If the Traffic Collision Specialists perform other duties, they would not receive this
premium pay for the time they are doing so. Transcript, at 672.
SECTION E - ASSIGNMENT PAY
Employees within the classification of deputy sheriff
and sergeant who are
assigned to the following job functions shall receive
$135.00 per month as
assignment pay. Effective January 1, 2001, the rate for this assignment pay shall
be changed form $135.00 per month to assignment pay equal to 3.5% of the
employee’s base hourly pay for the per period.
No employee shall receive more
than one (1) of the premiums set forth below at any given time: (Emphasis in
original).
a. Detective
b. OPS Investigator
c. K-9
d. Bomb Technician
e. Search & Rescue
f. Field Training Officer
g. Traffic Collision Specialist
In order to be eligible for assignment pay, employees must be assigned and
perform the assignment for a full pay period in order to be eligible for such
compensation; provided, however, employees assigned as a Field Training Officer
shall receive compensation for each full shift assigned and worked.
Effective the first full pay period following Guild ratification of this Agreement,
Traffic Collision Specialists are employees who, while assigned to investigate
collisions as art of the traffic investigation unit, hold a current Technical
Accident Investigation Certificate. In order to maintain current certification, an
employee must timely complete any continuing education or recertification
requirements established by the issuer. (Emphasis in original).
The Guild states that all members of the Traffic Unit should receive a new specialty
premium because of their “high degree of expertise” and training, and because the County’s
proposal to only award specialty pay to Traffic Collision Specialists is not supported by the
record and is “unworkable.” It argues that it can take up to two years to receive the Technical
Accident Investigation Certificate required for that position even under an accelerated program,
during which time deputies without the certification will be required to perform the same work
as certified deputies but without receiving the specialty pay. The Guild also objects to the
County’s proposal that deputies must complete any “recertification requirements established by
the insurer” because the identity of any such insurer is unknown and because there is no such
recertification program. The Guild also states that its proposal to raise the premium specialty
rates from the current 3.5% of the base hourly wage to 4% is warranted because the
comparability data supports such an increase and because deputies here have “relatively fewer’’
opportunities to receive premium pay. It also opposes the County’s attempt to limit multiple
premium pay.
The County objects to the Guild’s proposal calling for premium pay to be paid to all
members of the Traffic Unit on the grounds that premium pay is not paid to any of the County’s
other bargaining units; that its existing assignment premiums are above average when compared
to external comparables; that the Traffic Unit is required to perform the same job duties as other
deputies; and that Thurston County is the only comparable now providing for such premium pay,
(County Exhibit 6.2). The County also asserts that its proposal for premium pay to the Traffic
Collision Specialists is warranted even though there are no comparables supporting it because
their advanced training in accident reconstruction and forensic mapping “is far different than the
traffic enforcement and basic collision investigation performed by the entire Traffic Unit.”
While all members of the Traffic Unit are trained, that alone is not enough to warrant
creating a new premium for the entire unit when the record establishes that its members are
simply performing the basic elements of their job. In addition, only Thurston County among the
comparables provides for such a premium. Hence, law enforcement generally does not
recognize a need for such a premium. As a result, the Guild’s proposal relating to the Traffic
Unit is rejected.
The Guild’s request to raise the premium pay to 4% also is rejected because that pay will
automatically increase because of the 12% wage increases, and because there is no compelling
need to raise it any further.
The County’s proposal regarding the Traffic Collision Specialists will cost about an
additional $17,895 in 2005 and does not call for retroactivity. The record establishes that they
have received advanced training over and above what members of the Traffic Unit have received
and that their job duties call for a much higher degree of expertise. They thus receive four
separate levels of training which consist of a one week’s course involving basic collisions; a two
week’s course involving advanced collisions; a three week’s course involving technical matters;
and a four week’s course involving reconstruction work. fn:27
__________________________________________
fn:27 Transcript, at 664.
In addition, since some deputies already have obtained the necessary certification and
thus can immediately qualify for this premium pay, it appears that the Guild’s concerns about not
paying this premium to other deputies while they obtain their certification are overblown, at least
in the short term. The same is true for any recertification requirements. If any such requirements presently exist, it is reasonable for the Traffic Collision Specialists to meet them. If none exist, nothing will be lost by the County’s language. In addition, any problems arising over this language can be addressed in future collective bargaining negotiations.
Based upon these latter considerations, I find that the County’s proposal should be
adopted, and that it shall become effective in the first full pay period following the issuance of
the Award.
Turning now to the County’s proposal to limit the FTO’s premium pay, the County
asserts that FTO’s should only receive such premium pay for the shifts they actually perform
such training, as opposed to the prior agreement which required payment for the entire two-week
pay period even if deputies only serve as a FTO for one shift in a pay period. The County
contends that “The Guild does not offer any justification . . .” for opposing the County’s proposal
other than its incorrect claim that premium pay for the entire pay period was awarded by
Arbitrator Buchanan.
The Guild claims that the current contract language “is the result of a compromise
reached. . .” in the aftermath of the Buchanan Award which awarded a new FTO premium. It
asserts that “there were some ambiguities in the Award that required the parties to sit down and
negotiate some resolutions,” and that the County’s proposal here “would now undo that
compromise and strip away a significant portion of this already watered-down premium . . .”
That compromise was not set in stone, as it represented what the parties thought best at
time. Moreover, the Guild itself acknowledges here that collective bargaining represents a
“dynamic” process, which means that everything is on the table.
The County’s proposal is more reasonable than the Guild’s proposal because it calls for
paying premium pay to FTO’s only for those shifts where they actually work in that capacity, as
opposed to the current practice which pays them a premium for an entire pay period even if they
only work as FTO’s on one shift.
The County’s proposal therefore is adopted and it shall become effective in the first full
pay period following the issuance of the Award.
The County claims that its proposal to limit assignment pay to one premium per pay
period is supported by its comparables who have some sort of limitation on paying such
premium pay, (County Exhibit 6.2). The Guild claims that the comparables support its contrary
position, (Guild Exhibit 210).
The external comparables are mixed. Benton County and Snohomish County prohibit
some forms of “stacking’’ and the remaining comparables are silent, thereby making it difficult to
ascertain their actual practice.
But, regardless of what the external comparables provide, it makes sense to prohibit the
pyramiding of assignment pay since officers can only perform one assignment at a time. Hence,
there is no reason to pay them twice for performing one assignment.
The County’s proposal is therefore adopted and it shall become effective in the first full
pay period following the issuance of the Award.
HEALTH, DENTAL AND DISABILITY INSURANCE
The prior agreement provided for full health insurance for deputies and their families at
no cost. It also provided for fully paid dental and vision coverage for deputies, but not for their
dependents who paid 40% of the cost of their coverage, and it required the County to pay $10 per
month for supplemental disability insurance.
The Guild proposes to maintain the existing health insurance coverage and to obtain full
dental insurance for dependents and full supplemental disability insurance via the following
language:
. . .
2.
For the period January 1, 2001 through December 31, 2002, the The
County will provide for County-selected medical and hospitalization
coverage, vision care, life insurance and dental coverage for employees
and their dependents, subject to the limitations described below. The
County retains the right to substitute benefit plans that are substantially
similar to those currently in effect.
. . .
b)
2001-Medical Plan Options: Employees may choose from among
options: (1) County’s standard $15.00 copay plan with Group
Health with the County paying the entire monthly premium for the
employee and covered dependents of (2) County’s option $5.00
office visit and $5.00 Rx copay provided by Group Health in
which the employee pays $25.36 per month, (3) County’s optional
Health Plus or KPS plan coverage under which the employee pays
the difference between the County’s contribution described above
and the total cost of that coverage.
c)
2002 Maximum County Contribution:The County will pay up to
an amount that equals 100% of the premium for the lowest-cost
County-selected medical
, dental, vision and life plan
s available for
2002 each year of this agreement providing substantially
equivalent benefits to
those provided under the Group Health
composite $15.00 copay plan in 2001,
existing plans.
d)
2002 Medical Plan Options: Employees may choose from among
3 available County selected plans that provide benefits
substantially equivalent to those available in 2001.
3. The Employer shall allow employees to change insurance plans offered by
the County and add eligible dependents during the annual November open
enrollment period.
4. Employer shall sponsor and provide
full paid supplemental disability
insurance for all LEOFF II personnel
; provided, the Employer's
contribution shall not exceed one third (1/3) of each individual's monthly
cost, or ten dollars ($10.00),
which ever is lower,
provided further
participation shall be voluntary and at the option of the employee.
The County proposes no changes in 2003 and 2004 and it proposes the following health,
dental, and supplemental disability language for 2005:
1. The County will provide for County-selected medical and hospitalization
coverage, vision care. life insurance coverage and dental coverage for
regular full-time employees as follows:
a) For the period January 1, 2005 through December 31, 2005,
employees may choose to participate in one of the plans listed
below and apply the County monthly contribution towards the
monthly premium cost of the plan; employees will pay the
difference between the total monthly premium cost and the
County’s contribution towards the plan.
Alliant Plus Plan 2 County Contribution:
Employee $289.41
Ee +Spouse $609.10
Ee+Child(ren) $582.43
Ee+Family $905.19
Alliant Selec Plan 3 County Contribution:
Employee $289.40
Ee +Spouse $609.09
Ee+Child(ren) $582.42
Ee+Family $905.18
KPS PPOl County Contribution:
Employee $351.72
Ee +Spouse $698.59
Ee+Child(ren) $594.16
Ee+Family $944.10
KPS PP02 County Contribution:
Employee $314.82
Ee+Spouse $645.36
Ee+Child(ren) $550.93
Ee+Family $881.47
b) Regular employees who provide proof of alternate coverage may
waive coverage through the County’s sponsored medical plans.
2. In addition to the medical contributions set forth above, the County will
pay $46.21/month on behalf of regular, full-time employees towards the
cost of employee-only dental coverage and life insurance; this sum
represents one hundred percent (100%) of the 2005 premium costs for
County-selected employee only dental and life insurance coveraye. In
addition, the County will pay sixty percent (60%) of the total monthly
premium cost for County-selected dependent dental, vision and life
insurance coverage, up to a maximum of $50.81/month.
3. The Employer shall allow employees to change insurance plans offered by
the County and add eligible dependents during the annual November open
enrollment period.
4. Employer shall sponsor and provide supplemental disability insurance for
all LEOFF II personnel; provided, the Employer’s contribution shall not
exceed one-third (1/3) of each individual’s monthly cost, or ten dollars
($l0.00). whichever is lower; provided further, participation and
subscription shall be voluntary and at the option of the employee.
These three issues - health insurance, dental insurance, and supplementary disability
insurance - are addressed separately below.
HEALTH INSURANCE
The Guild contends that its health insurance proposal should be accepted, and that the
County’s proposal should be rejected, because the County should not be allowed to go from a
defined benefit plan which the Guild wants to maintain to a defined contribution plan with a cap;
because the comparability data “strongly supports” the Guild’s proposal; and because arbitrators
have recently reversed “long standing cap systems.” It adds that “Arbitrator Buchanan
recognized the superior nature . . .” of the non-Group Health plan the County wants to eliminate;
that the County “proposes to eliminate two benefits [plans] that the Deputies have historically
maintained through numerous sacrifices at the bargaining table . . .”; and that, “the trend in the
industry is not for the employee to have a cap on how much it contributes. . .” (Emphasis in
original).
The County argues that its proposal should be accepted because “Primera Blue Cross
eliminated Health Plus as an option in 2004 with no choice on the County’s part,” and that the
KPS PlanA also may be eliminated with no choice on the County’s part, thereby making it
impossible to guarantee the kind of plans offered in the past. It also asserts that the Guild’s
proposal “does not address the loss of Health Plus”; that the County has been forced to change its
insurance coverage because of “astronomical rate increases”; that the joint management-
employee Benefit Committee’s proposal which it is offering here “represents a reasoned and fair
approach because it will promote internal parity and because it is supported by the comparability
date”; and that “Employees in all market segments are contributing to the cost of health care.”
The County proposes to cap its contributions by contributing up to a maximum of
$944.10 in 2005 towards medical and vision insurance premiums for employees and eligible
dependents, and by having deputies pay anything over that amount. The County also proposes to
cap its dental and life insurance contributions by paying $46.21 for employee-only dental
coverage and life insurance (100% of the 2005 premium costs), and by paying 60% of the
premium for the dependent dental, vision and life insurance to a maximum of $50.81. Deputies
would have to pay anything over those amounts.
One need not be a graduate of the London School of Economics to understand that health
care costs are one of the biggest economic issues facing the country today; that health care costs
have risen dramatically; that employers are looking for ways to limit their health care costs; and
that they are asking employees to pay more for their health care coverage.
Here, for example, Premera Blue Cross eliminated its Health Plus Plan and there is a
chance that the current KPS Plan A may be eliminated in the future because the carrier may find
that it no longer is economically viable. Those are matters over which the County has no
control. The Guild has not offered any proposal to replace the Health Plus Plan with another
plan, and it similarly has not addressed the possible loss of the KPS Plan A.
In addition, every other County bargaining unit has recognized that changes had to be
made to their health care coverage, as they all agreed to the very changes the County proposes
here. The other 15 or so bargaining units agreed to those changes as members of the Benefits
Committee which also has three management members. The Guild chose not to participate in
those deliberations.
The ultimate product emerging from the Benefits Committee was fair and reasonable. It
required: (l), that the County continue paying 100% of the cost for three different health plans -
i.e. Group Health Alliant Select, Kitsap Physicians Services OptionI, and Kitsap Physicians
Services Option 2; (2), that employees who want the Alliant Plus Plan 2 must pay a monthly
contribution of $45 - $60; and (3), that there be premium sharing for spouse and dependent
coverage with premiums ranging from $0, $15 - $26, $40.70, and $160.38, depending on which
plan is chosen. All the other bargaining units therefore understood that something must be done
to help alleviate the County’s ever-increasing health care costs which will rise about 9.9% in
2005 over the 2004 rates. That also is why they agreed to prior design changes in the Alliant
Select Plan and the Alliant Plus Plan. The Benefits Committee’s recommendations were adopted
by the County Board on November 15, 2004, (County Supplemental Exhibit 7.5).
Given all this, the County rightfully points out that its “proposal will promote internal
parity.” Such “internal parity” is particularly important for health insurance because it is unfair
to ask one group of employees to make sacrifices, while at the same time excusing another group
of employees.(fn:28)
__________________________________________
fn:28
See Clark County at 84, (Axon, 1996),
City of Kennewick, at 50,54, (Krebs, 1997),
where the importance of internal parity on health issues was stressed.
As for the external comparables, it is difficult to get a precise comparison between the
benefits offered and even the cost of those benefits because it is almost impossible to ascertain
how the benefits of each health care plan match up with another, and because some cornparables
use composite rates and some use tiered rates.
The record does show that Benton County, Whatcorn County, and Yakima County cap
contributions for employee and dependent coverage and that employees there can pay between
$58 - $139 a month for such coverage, (County Exhibit 7.2; Guild Exhibit 225). This supports
the County’s proposal because three of the plans being offered here do not require any employee
contribution, and because some of those plans do not require any contribution for dependent
coverage.
Clark County, Snohomish County, and Thurston County all pay 100% coverage for
employees and their dependents, (Guild Exhibit 219), and none of them cap the employer’s
contribution. In addition, a cap was recently removed in Yakima County,(fn:29) and the cap in
Whatcom County for a certain plan is on the employee’s contribution, thereby requiring the
County to pick up anything over the cap.
_________________________________
fn:29
Yakima County, (Gangle, 2004).
The Guild complains that “a cap system would mean that in the year or two following
expiration, the rate would stay at the prior year’s level and the deputies would be carrying the
full burden of any and all increases in health insurance premiums,” a situation it calls
“intolerable” for people who put their life on the line. (Emphasis in original).
This is a real problem because if health care costs continue to escalate, that can force
deputies to pay significantly more for their health care coverage while they await the results of
bargaining over a successor contract.
That is why a cap on employer contributions is not ideal, and why percentage premium
contributions are a fairer way of dealing with this problem since they split the costs of any
premium increases after an agreement expires. However, it also is true that caps on employee
contributions, which the Guild proposes here, also cause a problem since they require employers
to pick up all health insurance increases after an agreement expires. If I had to select between a
cap system on either side or a fixed percentage employer-employee contribution, I therefore
would choose the latter.
Arbitrator Gangle addressed this issue in Yakima Countv, supra. She ruled that while
that county’s health insurance proposal was “unreasonable” because it attempted to cap
contributions for 2003 and 2004, the Guild’s proposal for a 100% MI family coverage was
“excessive” because it would “place the full burden for all insurance rate increases for families,
as well as individual employees, on the County.” She stated that the Guild’s proposal was
“inconsistent with the current trend of requiring a small co-payment for dependent coverage . . .”
(Id., at 34). She then ruled that the employer should pay 100% for all but full family coverage
under a particular plan, and that it should pay 90% for full family coverage. Id., at 35. She
added: “The arbitrator does not agree that the employee’s contribution should be expressed as a
maximum dollar amount per month, as the Guild requested. There is no precedent among the
comparables for such an award.” Id., at 35.
Arbitrator Janet L. Gaunt also ruled in Whitman County, (Gaunt, 2004), that the
employer should pay 60% of the premium for dependent medical, dental, and vision insurance,
thereby requiring deputies to pay 40% of the premium. Id., at 3 I.
The growing need for employee contributions for health insurance was noted in Kbg
County Fire District #44, (Wilkinson, 2001). There, Arbitrator Jane R Wilkinson found that
“more represented employees are sharing in the costs of health care insurance to some degree,”
and that:
Arbitration awards from the past several years also have shown a willingness on
the part of arbitrators to frame an award that includes some sort of employee
contribution to the cost of health care insurance. Appendix A to this award lists
all the awards about which the neutral Arbitrator has knowledge from the past
four years that have addressed the issue, and the arbitrators disposition. In most
of those cases, the employees either were, or ended up making a contribution to
the cost of insurance.
Id., at 53-55.
See also City of Burlington, at 49 (Axon, 2002), where Arbitrator Axon stated: “The days of
100% employer payment for insurance benefits are coming to an end.”
The Guild cites Yakima Comtv, supra, City of Omak Police, (Revees, 2004), and Kittitas
County Deputy Sheriffs, (Lehleitner, 2003) in support of its claim: “Arbitrators have recently
faced this question of awarding a defined benefit system as opposed to a defined contribution
system, similar to that proposed here. In these three cases the arbitrators actually reversed long
standing cap systems.” (Footnote citations omitted). (Emphasis in original).
The question of caps, though, is a separate question of whether employees should pay
more for insurance coverage and whether all prior insurance coverage must be continued.
Hence, it is possible to reject a cap system but still require employees to pay more for their
health insurance coverage via fixed percentages and to make changes in that coverage. That is
why Arbitrator Gangle in Yakima County, supra, rejected the employer’s cap proposal but still
required employees to pay 10% of their health insurance premium, and why Arbitrator Gaunt in
Whitman County, supra, did the same thing when she required employees to pay 60% for
dependent coverage.
As for the Citv of Omak, Arbitrator Revees rejected a cap system, but he added that the
City would only have to pay 50% of the premium increases for dependent coverage after stating:
“I note the national trend is towards employees picking up an increasing share of health and
welfare premium contributions. . . or for employers to reduce the level of coverage provided to
employees.” Id., at 22.
The Guild points out that Arbitrator Revees considered the parties’ past agreements
regarding health insurance and it states that that must be done here because Arbitrator Bwhanan
in 1998 ruled that the deputies were entitled to “top quality, easily available medical care,” rather
than the County’s proposed HMO which offered “less health coverage than do the Blue Cross
and Kitsap Physicians Service Plans.” Award, at 21, 20. The Guild therefore contends: “The
deputies have historically enjoyed an enhanced level of benefits as compared to other County
bargaining units and have made numerous sacrifices in bargaining to meet that important goal.”
But that does not mean there cannot ever be any changes regarding the health insurance
awarded by Arbitrator Buchanan when the Counly was not responsible for the dropping of the
prior Health Care Plus plan; when the County will not be responsible for the possible dropping of
57·the KPS Plan A in the future; when the Guild itself did not offer any substitute health plan in
negotiations; when the County in 2005 will experience a 9.9% increase in its health care costs;
when it appears that health care costs will continue to rise;(fn:30) and when the County simply no
longer can afford to pay for all of the health insurance coverage it provided in the past.
________________________
fn:30 Transcript, at 367.
In other words, things have changed since the issuance of the Buchanan Award in 1998
when health care costs were a fi-action of what they are now. Indeed, the Guild itself no longer
feels tied down to what Arbitrator Buchanan decided, as it is now proposing to have the County
pay for all dependent coverage even though Arbitrator Buchanan rejected that very proposal.
The Guild also claims that the County’s proposal requires deputies to pay more for their
health insurance than their counterparts among comparables because they now pay about 5% of
the total premium for medical, dental, and vision insurance, whereas deputies among the Guild’s
comparables only pay 1.37% of the premium, (Guild Exhibit 219). The Guild’s data, however,
includes Pierce County which is not a comparable, and it excludes Benton County, Spokane
County, and Yakima County which are comparables. A look at all of the comparables shows
that the County’s proposal is in line with what is found elsewhere.
The County’s proposal is also supported by the 12% wage increase the deputies will
receive over the three years of the agreement. That increase more than covers the added out-of-
pocket expense deputies may incur, and it represents the kind of trade-off found in negotiations
where substantial wage increases are granted in exchange for employee concessions on health
insurance.
When that is coupled with the fact that three of the County’s plans - i.e. Group Health
Alliant Select, Kitsap Physicians Services Option I, and Kitsap Physicians Services Option 2 - do
not require any employee contribution and that the costs for dependent coverage are reasonable, I
find that the County’s health care proposal should be adopted and that the Guild’s health care
proposal should be rejected.
The County’s proposal will become effective as soon as practicable after the issuance of
this Award.
DENTAL INSURANCE
Deputies now receive fully paid dental insurance for themselves and they pay $29 per
month for dependent coverage.
The Guild wants the County to pay 100% for employee and dependent coverage based
upon the comparables, and it objects to the County’s proposal to cap its contribution for
employees at $46.21 per month and to cap its contribution for dependent coverage at $50.81. It
argues that the County is the only jurisdiction among its comparables to require a contribution
from its employees on either the employee or dependent side, (Guild Exhibit 221)’ and that all of
the County’s own comparables provide for full employee and dependent coverage with the
exception of Yakima County which still offers more than what the County is offering here. It
also contends that the County’s proposal will further erode this benefit.
The County claims that the Guild “has not sustained its burden of demonstrating a
compelling need to change the status quo.” It argues that Arbitrator Buchanan ruled against the
Guild on this very proposal; that the Guild “has not shown any reason to change this.. .”; and
that arbitrators have rejected attempts to increase this benefit, citing Walla Walla (Krebs, 2003);
City of Camas (Wilkinson, 2003).
Arbitrator Buchanan’s decision was issued in 1998 when the data on comparability may
have been different. Indeed, Arbitrator Buchanan did not even refer to any comparables in this
part of his Award.
Now, all of the external comparables except Yakima County provide for fully paid dental
insurance.
All of the internal comparables support the County, as no other internal bargaining unit
has what the Guild seeks here.
The external comparables certainly support the Guild’s proposal. However, no internal
bargaining unit has what the Guild wants here even though all of them bargained over health
insurance, at which time they gave up concessions in order to obtain their present coverage. I
therefore conclude that this is not the right time to grant the Guild’s proposal and that this matter
should be left to the parties’ future negotiations. The Guild’s proposal is therefore rejected.
SUPPLEMENTAL DISABILITY INSURANCE
The County’s contribution for supplemental disability insurance is presently capped at
$10 per month.
The Guild wants to raise it because the cost of this insurance has gone up from the time it
was first negotiated in the 1980’s; because the “erosion of this benefit” needs to be addressed;
and because the “inherent dangers” of a deputy sheriff’s job duties support its proposal.
The County points out that it fully funds a $24,000 life insurance plan and that it provides
an additional $20,000 for those wanting disability coverage. The County emphasizes that the
issue here concerns supplemental disability insurance and that the Guild’s proposal is not
supported by either the external or the internal comparables.
With the exception of Whatcom County, no other comparable even provides for
employer contributions for this benefit, (Guild Exhibit 223), thereby establishing that the County
already is paying more than most of the comparable jurisdictions. When that is coupled with the
fact that no internal comparables support the Guild’s proposal, I find that it should be rejected.
HOURS OF WORK
The prior agreement provided for a 5-8 work week schedule and it allowed the County to
create a 4- 10 workday if it so desired. Under that agreement, the County has maintained a 4- 10
schedule for its patrol swing shift.
The Guild proposes to change the existing contract language so as to provide for a work
week schedule consisting of four ten-hour days for the entire bargaining unit via the following
language:
. . .
4.
Hours of work shall consist of four (4) consecutive days on, followed by
three (3) consecutive days off.
The County opposes that change, and proposes to change the prior language so as to
allow it to establish an alternative work schedule via the following proposal:
SECTION J - HOURS OF WORK
. . .
4. The Sheriff shall retain the discretion to implement
a four (4) (10) hour
workday week alternate work schedules for an individual unit, (Example:
Detectives/Investigation, Patrol, Traffic, Crime Prevention, warrants . . . .)
or, the entire membership represented by the Guild. The Sheriff shall also
retain the discretion to end an individual unit or the entire membership’s
participation in the
four (4) (10) hour workday week alternate work
schedule and return to the five (5 ) - eight (8) hour workday week.
Employees assigned to
a four (4) (10) hour workday week an alternate
work schedule shall abide by the terms of this agreement. Employees who
are assigned to
a four (4) (10) hour workday week an alternate work
schedule and subsequently are reassigned to a five (5) eight - (8) hour
workday week shall abide by the terms of the general agreement fiom the
effective reassignment day.
The Guild states that its 4-10 work week proposal should be adopted because it “seeks to
restore the benefit of the bargain it believed that it had acquired through previous negotiations”
when prior administrators promised not to change the then-existing 4-10 schedule. It argues that
a 4-10 schedule “is obviously much more attractive . . . given the decreased frequency af work
and the decreased frequency of commuting”; that the County’s past failure to properly staff the
department is not a sufficient reason for rejecting its proposal; and that its proposal “would
decrease the costs to the County, not increase them as suggested.” It also contends that the right
of management “to unilaterally change work hours is an impermissible waiver of the Guild’s
right to bargain hours of work,” which is why this clause should be either eliminated fiom the
labor agreement or “modified to clarify that it does not constitute a waiver of the Guild’s right to
engage in collective bargaining.”
The County contends that the Guild has failed to meet its burden of proving that the
current 5-8 work week schedule should be changed to a 4-10 work week schedule because the
Guild has not provided a solution for resolving coverage and overtime issues; because the
Department “has unsuccessfblly tried a four-ten scheduled in the past”; and because the Guild’s
proposal “compromises deputy safety.” The County adds that a 4-10 schedule “does not make
efficient use of the County’s resources”; that the “comparability data undermines the Guild’s
proposal”; and that, “The exorbitant cost of the Guild’s proposal cannot be justified.”
It is certainly understandable why the Guild wants to switch to a 4-10 schedule. That
would eliminate an entire day of reporting for work, thereby giving deputies three full days off as
opposed to the two they normally get under the current 5-8 schedule. That would be particularly
attractive because of the three-month rotating schedule which causes considerable disruption in a
deputy’s life.
In addition, Guild Vice-president Howerton testified that he and other Guild
representatives were specifically told by then-Undersheriff Charles Wheeler in the 1990’s that
the then-current 4-10 schedule would remain in effect,(fn:31) and the Guild claims that the 4-10
schedule was subsequently abolished because the Guild did not support the then-Sheriffs re-
election bid. The County counters that “This argument is nothing more than pure speculation”
because the 4-10 schedule “was not changed until many months after the election,” and that it
was changed because of the increase in overtime liability and shortage of staffing it caused.
____________________________
fn:31 Transcript, at 1090.
There was extensive, but conflicting, testimony at the hearing regarding the County’s
staffing and overtime problems under the prior 4-10 schedule. Howerton testified that those
problems were exaggerated and that the County itself made those problems worse by not filling
vacancies and by not charging outside entities when they used deputies to man their events.
Former Undersheriff Wheeler, on the other hand, testified that the prior 4-10 schedule created a
number of problems relating to excessive overtime and staffing. Chief Newlin also testified that
a 4-10 schedule does not constitute the most efficient use of personnel.
But regardless of what happened in the past, it is clear that switching over to a 4-10
schedule for all bargaining unit personnel would create a considerable overlap of deputies when
they change shifts between 2:00 p.m. - 4:00 p.m. and 8:00 p.m. - 12:00 am. every day. It also
would reduce the number of deputies on a shift from 13-14 under the current 5-8 schedule to 9-
10 deputies under a 4-10 schedule, thereby placing great strains on the County’s staffing needs.
Chief Newlin thus testified:
(A four-ten schedule) reduces the number of people that were allowed to have off
for training and other things-annual leave, comp time-to a point where there
would be only two, and some rare occasion, three people that would be allowed
(on). The sergeants, throughout this process, have told us that for a significant
period of time (during the year) its (sic) already difficult to juggle the requests for
time off or training and those kind of things with the numbers were allowing at
four and five. Going to a four ten across the board just exacerbates that problem,
twofold at least. Because you have the number of slots available for people to be
gone during that da without backfilling, and that then increases overtime if you
backfill to do that. (fn:32)
______________________________________________
fn:32 Transcript, at 1123.
Chief Newlin’s concerns are shed by some of the Department’s sergeants who also are
represented by the Guild. They agreed a 5-9 schedule is preferable over a 4-10 schedule,
(County Exhibit 8.4, at 12-13).
In addition, Howerton’s personal mock-up of a 4-10 schedule called for having only one
supervisor per shift on two days, thereby possibly requiring the County to back-fill that position
and pay overtime, and it called for the possible reassignment of other deputies from the Student
Resource Staff, the Traffic Unit, and the K-9 staff. Howerton also acknowledged om cross-
examination that he does not know whether a 4-10 schedule would increase the County’s
overtime costs.(fn:33)
_______________________
fn:33 Transcript, at 1105 -1106.
Such a schedule would greatly increase the use of the County’s dispatch system by
having more deputies using the radio at the same time. David E. Magnenat, the Deputy Director
of the County’s Central Communications which operates the County’s dispatch system, testified:
My assessment at the time and my assessment today is that putting more deputies
on the air on that frequency, specifically would be-would have a tremendous
impact on our ability to provide a quality level of service to all the deputies.
. . .
when you have a four-ten shift, you have an overlap of shifts. Overlap of shifts
means more people. More people on the air means that you are-we’re not able
to provide as quality services that we need to. And my concern in this e-mail was
that, depending on how many more people were talking about, it potentially
would cross the threshold of being an officer safety issue, from my viewpoint(fn:34)
__________________________________________________________
fn:34 Transcript, at 1172- 1173.
This problem cannot be readily alleviated by creating another radio frequency for the
Sheriffs Department. Magnenat testified, without contradiction, that no new radio frequency
could be readily obtained if the City of Bremerton does not want to split its frequency, and that
any new frequencies would require the building of new radio towers.
Furthermore, the Guild’s proposal has no support among the comparables. For while
some comparables provide for a 4-10 schedule among other schedules, not one comparable has
an exclusive, fixed 4-10 schedule for an entire department, (County Exhibit 8.2).
Given all of the above - which shows that a 4-10 schedule would create an overlap of
deputies; that it would strain the Department’s staffing needs; that it could necessitate the
needless reassignment of deputies; that it could dangerously impact the dispatch system; and that
it is not supported by any of the cornpatables - I conclude that the Guild’s proposal must be
rejected.
Turning now to the County’s proposal on hours, it would give the County carte blanc to
establish an “alternative work schedule” for any individual unit in the Department. The County
claims that its proposal is needed “to implement other alternative work schedules that best
maximize the C~unty’~ resources,” and it points out that sergeants have reported that “a five-nine
schedule would provide increased staffing during peak hours. . .’, and that it would “allow some
overlap for paperwork, shift briefings and training and would reduce overtime costs.”
That may all be true. However, the County’s proposal goes too far because it gives the
County the absolute right to establish whatever alternative schedules it wants, anytime it wants,
for however long it wants, thereby eviscerating the very concept of a standardized work week.
In addition, no comparable jurisdiction has this kind of language.
I therefore find that the County’s proposal must be rejected because it is too broad, and
that the successor agreement is to keep the current contract language regarding hours of work.
OVERTIME COMPENSATORY TIME, SUBPOENA REPORT PAY, AND
PYRAMIDING
COMPENSATORY TIME
The prior agreement provided for a compensatory time bank with a maximum of 40
hours. Deputies who work overtime thus have the choice of receiving overtime pay or having
compensatory time which they can bank up to 40 hours.
The Guild wants to increase the overtime compensatory bank from 40 to 80 hours via the
following language: “The maximum accrual of compensatory time shall not exceed (80) hours.”
The County opposes that change and wants to keep the current maximum of 40 hours.
The Guild states that its proposal to increase the comp time bank from 40 to 80 hours is
supported by the comparables, and that there is no merit to the County's claim that its proposal
would increase the County's overtime costs.
The County claims that its overtime costs will "significantly increase" because it will
force the Department to "pay additional overtime to cover the absences caused by deputies using
their comp time bank," and that, "Doubling the comp time bank will undermine internal
consistency."
The Guild's proposal is supported by the comparable. Thurston County, Whatcom
County, Clark County, Spokane County, and Yakima County respectively allow 60, 80,110, 80
and 120 hour caps, and Snohjomish allows an unlimited accrual rate. Only Benton county has a
lower cap of 20 hours, (Guild Exhibits 230-231).
The County claims that "A true 'apples-to-apples' comparison with the comparable
jurisdictions is not possible . . . because we do not know teh staffing resources available at other
departments that could mitigate any adverse consequences caused by a larger comp time bank,"
which is why it adds that "an internal comparison is a more meaningful 'apples-to-apples'
comparison."
I disagree. For while it is true that this record does not establish what effect comp time
banks have on staffing in other jurisdictions, there is no reason to believe that they will have any
more effect than what will happen here.
The County, though, is probably correct in stating that it will incur some additional
overtime costs if the comp time bank is increased because that will allow deputies who
will be paid overtime.
That cost must be weighed alongside the comparabiltiy data showing the County's
comp time bank is below all but one comparable. Since the external comparables are so strong
in the Guild's favor, I find they outweigh the cost fo raising the comp time banke ot 80 hours and
the internal comparables which support the County's proposal, (County Exhibit 9A.3). The
Guild's proposal therefore is adopted and it will become effective in the first full pay period
following the issuance of the Award.
COURT TIME
The prior agreement provided for the payment of court time only if deputies are actually
called to appear in court. If they do not appear, they do not receive any compensation.
The Guild proposes that court time be paid to all officers who are not told by 5:00 p.m. of
the prior day that they are not needed for court on the following date with the following
underlined language:
7. Employees, who have completed their scheduled work shift or are on vacation
or days off, who are subpoenaed to give testimony in court about events
arising out of their employment, or are required by the Sheriff, or his
designee, to report back to work, shall receive a minimum of three (3) hours
pay at the applicable overtime rate.
This provision applies to any scheduled
court appearance unless the employee is advised by 5 P.M. the previous day
that they are released from the subpoena (Emphasis in original).
The Guild states that "A court time threshold should be established to at least partially
offset the inconvenience to the personal lives of the deputies" when they are supoenaed to
testify in court and then told to stand by on their off-duty time, as they await word whether they
will be needed in court. The Guild points out that Whatcom County and Snohomish County
provide for the kind of cut-off pay sought here.
The County argues that it has “done the best it can with a process controlled by the court
system”; that the proposal “simply would not work given the court procedures”; that the Guild
has not “demonstrated a compelling need to change the status quo”; and that the proposal “is not
supported by the comparability data.”
This process is largely out of the Department’s control because the Sheriffs Department
has no say over when deputies will be released from subpoena duty.
Nevertheless, deputies work for the County and the Kitsap County court system and the
prosecutor’s office are entities of the County. Hence, it is not unreasonable for other entities of
the County to help alleviate this problem since they, too, are part of County government. If they
fail to do so, it is fair to then require another entity of the County government - i.e. the Sheriffs
Department - to compensate deputies for their inconvenience when they are fulfilling a County
duty.
Moreover, Whatcom County and Snohomish County have contract language similar to
what is being sought here, thereby showing that this kind of proposal can work if there is the will
to do so, (Guild Exhibit 232).
The County correctly points out that the Guild’s proposal is not supported by any of the
other comparables, (County Exhibit 9.B). While this fact must be considered, I find that
comparability cannot be given its normal weight for a matter involving off-duty time and off-
duty inconvenience. That time is a deputy’s free time and if the County wants its deputies to
provide any service during that time, it should pay them for doing so. When they are not being
paid, it is unreasonable to expect that that state of affairs should continue merely because the
majority of other comparables do not properly compensate their deputies.
Furthermore, the County can avoid payment by simply telling deputies at the end of the
day whether they will be needed for the next day, as all decisions should be known by that time.
If they are not, and if a County entity then insists that deputies must wait around on their off-duty
time to see whether they will be called as witnesses, the County should pay them for the
inconvenience they will suffer.
The record is unclear whether the present cut-off is 5:00 p.m. as the Guild contends, 35 or
6:00 p.m. as the County contends. 36 I find that the Guild’s proposal should be adopted, but that
the cut-off time for receiving notification must be 5:30 p.m. because the parties have agreed to
that compromise and the Guild’s language is hereby changed to reflect that fact.
Given the above, I conclude that the Guild’s proposal should be adopted. It therefore will
become effective in the first full pay period following the issuance of the Award. 37
_________________________________________________________________
fn:35 Transcript, at 1064.
fn:36 Transcript, at 1077- 1078, 1131.
fn:37 The Guild agrees that this proposal should not be retroactive. Transcript, at 252-253.
OVERTIME PYRAMIDING
The prior agreement apparently provided for the pyramiding of overtime.
The County wants to halt the pyramiding of overtime via the following new language:
7.
No pyramiding. Compensation shall not be paid more than once for the same
hours under any provision of this article or agreement (Emphasis in original).
The County states that “Paying triple time plus granting annual leave for the same hours
worked does not make sense,” and that its proposal is needed to clarify the agreement. It claims
that its proposal is supported by the comparables because three counties expressly exclude
paying double overtime compensation, and because three other counties do not expressly address
pyramiding in their contracts. It also argues that the Guild’s data on comparability is wrong and
“inapposite” because it does not address pyramiding and because it, instead, addresses the
separate issue of receiving multiple assignment pay.
The Guild contends that the County’s proposal should be rejected because “this
bargaining unit is already well behind its comparables on the number of premium days,” and
because its adoption “would only lead to a further gap in this compensation.” It adds that the
County’s proposal is not supported by the comparables, and that the silence in some of those
contracts “does not mean no pyramiding but rather the direct opposite.” The Guild also asserts
that the “overwhelming weight” of arbitral authority supports its position, and that arbitrators
have adopted the “dual inconvenience” theory in allowing for the pyramiding of overtime.
The comparables on this issue are unclear, (County Exhibit 9C.2). For while three
contracts are silent on the question of pyramiding, i.e. - Clark County, Whatcom County, and
Yakima County - there is no evidence as to whether pyramiding is, or is not, paid under those
agreements. Hence, the record establishes for certain only that the County’s language is
supported by three other comparables -i.e. Benton County, Spokane County, and Thurston
County.
In addition, it is hard to see why this part of the agreement should become more
restrictive when, as related above, the deputies here already have fewer premium holidays than
the comparables. Furthermore, the Guild has cited considerable arbitrable authority showing that
the pyramiding of holiday overtime is called for. Bornstein and Gostine, Labor And
Employment Arbitration, § 32.04[3], n. 17, thus states:
Pyramiding of holiday pay and holiday premium pay for work on the holiday
should be contrasted with the payment of holiday pay and overtime pay for work
on the holiday. An employee otherwise entitled to overtime compensation for
work performed on the holiday should receive both overtime pay and the
designated holiday pay in the absence of a provision expressly prohibiting such
payment. (Footnote citation omitted)
Because of these latter factors, I conclude that the County’s proposal should be rejected.
LIABILITY COVERAGE
The prior agreement required the County to defend a deputy when he/she acts “within the
scope of the employee’s official duties.”
The Guild proposes to change that language via the underlined language:
SECTION L - LAW ENFORCEMENT OFFICERS’ LIABILITY
1. If an action or proceeding for damages is brought against an employee
arising from acts or omissions made while acting or, in good faith
purporting to act, within the scope of the employee’s official duties, then
the County will provide a defense of the action or proceeding for the
employee and indemnify the employee from an damages arising from
such an action or proceeding. (Emphasis added). (fn:38)
. . .
________________________________________________
fn:38 The Guild stated at the hearing that its written proposal contained a typographical error
and that the word “with” in line 3 should be “within.” Transcript, at 783. Its proposal therefore
has been corrected to reflect that fact.
The Guild states that its underlined language - which it says represents an "objectively
reasonable belief"(fn:39) - is needed because it “mimics” the County’s Self-Insurance Liability
Policy which is obtained through the Washington Counties Risk Pool which defines the nature of
72·available coverage, (Guild Exhibit 217). It also contends that officers should be given the right
to grieve over the possible denial of such coverage just like five of the comparables and that:
“Ambiguities in the language must be dealt with immediately before a deputy finds themselves
in the situation where they need this coverage and there is a question as to what the policy
covers.”
_______________________
fn:39 Transcript, at 982. Given the Guild’s representation that its added language refers to an 39
“objectively reasonable belief,” this language is construed in this manner.
The County claims that the Guild’s proposal should be rejected because the Guild has not
sustained its burden of demonstrating a need to change the status quo since the County has never
denied about 25 such claims over the last 20 or so years, and because the proposal “inserts
unnecessary ambiguity in the contract.’’
Since the County has always granted such coverage in the past, there is reason to question
whether this proposal is needed.
However, if such coverage is ever denied in the future - and no one really knows whether
that will ever happen - officers then will not have any mechanism to appeal such a denial,
thereby subjecting themselves to a large financial risk. Moreover, the Guild’s proposal is hardly
unique since five of the comparables - i.e. Spokane County, Thurston County, Whatcom County,
and Yakima County - allow officers to appeal the denial of such coverage through the
contractual grievance procedure, (Guild Exhibit 214), thereby guaranteeing that there will be a
neutral determination of whether coverage has been properly denied.
In addition, the Guild’s proposal merely reiterates the very terms of the County’s policy
with the Washington Counties Risk Pool Joint Self-Insurance Liability Policy which includes the
term “or, in good faith purporting to act,” thereby showing that the Guild is not trying to expand
the terms of the County’s liability coverage one wit, (Guild Exhibit 217). Furthermore, it is
necessary to clear up this matter because the County’s Ordinance which provides for liability
coverage does not include this quoted term, (County Exhibit 10.2). The Guild’s proposal
therefore clears up any possible confbsion over whether the County’s Ordinance supersedes the
County’s policy.
Given these latter considerations, I conclude that the Guild’s proposal should be adopted
and that it shall take effect upon the issuance of the Award. 40
_____________________________________________________
fn:40 The Guild agrees that this proposal should not be retroactive. Transcript, at 252-253.
EDUCATIONAL INCENTIVE
The prior agreement did not provide for any educational incentive.
The Guild proposes to create a new education incentive via the following language:
M.
Educational Incentive
The employer will provide education incentive pay to employees in accordance
with the following schedule: (Emphasis added).
AA/90 degrees 2%
BA 4%
The Guild states that its education incentive proposal, which would be paid to officers
having at least 90 credits of course work but not necessarily a AA degree, should be granted
because it is necessary to look at overall wages. It also argues that its proposal is supported by
the comparables because Thurston County and Snohomish County provide educational
premiums of 2.5% and 3.5% at the ten year AA level and 4.5% and 7.0% at the ten year BA
level; because Benton County provides a 1% premium on the AA and BA levels; and because
Spokane County has a 3% and 7% premium at the AA and BA levels, (Guild Exhibit 114). The
Guild also claims that “Educational premiums have long been favored as a way of recruiting and
retaining well-education officers,” and that the County itself recognizes this fact by making an
AA requirement part of the job for new applicants.
The County claims that the Guild’s proposal “would give a premium pay to deputies for
simply meeting the minimum qualifications or taking classes wholly unrelated to law
enforcement”; that the comparables do not support the Guild’s proposal; that there is no need for
such a premium because the County’s proposed wages already exceed the wages offered by
comparable jurisdictions; and that, “No other employee group within the County has an
educational incentive.”
The external comparables support the County. Clark County, Yakima County, and
Whatcom County do not have an education incentive, (County Exhibits 11.2), and Spokane
County and Snohomish County require deputies to choose between educational or longevity pay;
they cannot have both, (County Exhibit 1 1.2). Hence, only Thurston County and Benton County
provide for both premiums, (County Exhibit 1 1.3)
There also is no support for this proposal among the internal comparables since no other
County bargaining unit receives an educational incentive.
When these latter factors are combined, I conclude that the Guild’s proposal must be
rejected.
SHIFT DIFFERENTIAL
The prior agreement did not provide for any shift differential.
The Guild proposes that a differential be created via the following language:
0.
Shift Differential
Employees assigned to swing or graveyard shift (any shift starting noon or after)
shall receive a shift differential premium equal to one and one half percent (1.5%)
of their base wage (Emphasis added).
The Guild states that its proposal should be adopted because shift work “creates
substantial hardships . . .” on deputies and their families and that, “Working non-traditional hours
of the day is a major disruption, and as such, deserves an additional form of compensation”
particularly given the Department’s three-month rotating shift. It also points out that Clark
County and Snohomish County provide for a shift differential premium, and that Spokane
County provides for a shift differential for swing and graveyard shifts, (Guild Exhibit 206).
Acknowledging that it gave up shift differential pay in 1995 in exchange for a larger wage
increase, the Guild argues that it is now appropriate to recapture it because comparables support
it and because the deputies here are falling further behind on wages.
The County claims that the proposal “end-runs” the parties’ agreement because the Guild
agreed in 1995 to drop shift differential pay in exchange for a larger wage increase and because
the proposal is not supported by the comparables, (County Exhibit 14.2).
The comparables are split. Benton County, Thurston County, Whatcom County, and
Yakima County do not provide for any shift differential. Clark County provides for a swing shift
premium of 306 per hour worked and for a grave shift premium of 406 an hour; Snohomish
County provides for 1% of the base wage on the third watch and 2% of the base rate on the first
watch; and Spokane County provides for a swing shift premium of 1% per hour worked and a
grave shift premium of 2% per hour worked.
Since there is no clear support among the external comparables for the Guild’s proposal,
and since none of the internal comparables provide for a shift differential, I find that the Guild’s
proposal should be rejected.
PREMIUM PAY FOR ALL HOLIDAYS
The prior agreement provided for premium pay of two and a half times the regular rate of
pay plus an additional eight hours of leave added to a deputy’s annual leave bank for four
holidays: New Year’s Day, Independence Day, Thanksgiving Day and Christmas Day.
The Guild proposes that such pay be paid for all ten designated holidays in the contract -
i.e. New Year’s Day, Martin Luther King Day, President’s Day, Memorial Day, Independence
Day, Labor Day, Veteran’s Day, Thanksgiving Day and the day following, Christmas Day, and a
Floating Holiday.
The Guild states that “A change in the premium pay for designated holidays is now
due . . .” largely based on the data from the comparables, (Guild Exhibit 234).
The County maintains that no increase is needed because the Guild’s proposal “is far
richer” than the comparables, (County Exhibit 15.2), and because the current language is “far
more” than what is provided to other employee groups within the County.
The comparables are mixed. Clark County, Whatcom County, Thurston County,
Snohomish County and Spokane County respectively offer 5, 6 , 10, 11 and 5 days of premium
holiday pay. However, Benton County and Yakima County have no such holiday premiums, and
only Thurston County and Snohomish County have 10 or more premium holidays. Hence, the
Guild’s proposal for 10 days’ premium holiday pay is only supported by two external
comparables. In addition, internal comparables show that five bargaining units do not receive
any holiday premium pay, and that the other bargaining units receive the same holiday premium
pay now provided to the deputies.
The Guild’s proposal would be much more attractive if it did not call for paying premium
pay on all ten holidays because the deputies here are behind most of the external comparables.
However, the Guild’s proposal for all ten days is only supported by two of the comparables.
Accordingly, and because the internal comparables support the County, I conclude that the
Guild’s proposal must be rejected.
ANNUAL LEAVE APPROVAL PROCESS
The prior agreement did not address what mechanism is to be used in granting annual
leaves, and it did not expressly prohibit the granting of such leave during designed training
periods.41
___________________________________________________
41 The word “expressly” is used because the contractual management rights clause may or
may not have allowed the County to restrict leaves during training times, which is an issue the
panel need not decide.
The County proposes the following new language to govern the granting of annual leave:
SECTION B - ANNUAL LEAVE
4. Employees’ requests for annual leave shall be made on the Sheriffs
Office supplied form and submitted to their immediate supervisor for
approval. No leave will be approved unless earned, and to be approved,
leave must be taken at a time when it will not impair the efficiency of
working units. If the Sheriff or designee determines that the nature of the
work is such that no employees or a limited number of employees may be
on leave at a given time, the Sheriff or designee may establish non-leave
or restricted leave periods. In addition, the Sheriff or designee maw
designate up to five weeks beginning in middle January in which annual
leave use will be restricted for training scheduling purposes. (Emphasis in
original)
The County states that its proposal is needed because the labor agreement does not
specifically address leave scheduling; because the parties’ disagreement over this issue has led
the Guild to file unfair labor practices with PERC; and because the County has the right to
schedule leaves under the prior agreement’s management rights clause and under the County’s
1995 Leave Policy which states that leaves can be taken “at the convenience of the department,”
(County Exhibit 16.2). It also argues that its proposal “clarifies” its management “right to
reasonably restrict leave to insure the efficient operations of the department”; that its proposal
“promotes internal consistency”; and that the Guild “offers no reason to reject the County’s
proposal.”
The Guild claims that this issue is now pending before PERC and that there “is no need
to change the language before that matter is decided” because: “At the very least, some direction
from PERC on this issue is of the utmost importance, given the past practice and the differing
views over whether this is a mandatory subject of bargaining.” It also asserts that the County has
failed to meet its burden of proving its leave proposal is needed because the Guild in the past
“has worked with management on this issue,” and because the proposal for the first time would
allow the County to change the shifts of officers so they could attend mandatory training for a
week.
It again must be pointed out - as was stated above relating to the issue surrounding the
Guild’s activities - that the unfair labor practice filed with PERC centers on the language in the
prior agreement, and that that issue is a separate issue of what the new agreement should provide.
Since both parties have the right to propose changes to the prior agreement, and since PERC has
declined to remove this issue from this proceeding, I find it is proper to address the merits of this
issue.
As to that, the record establishes that the Guild in the past has worked with the County in
trying to deal with certain leave issue. Nevertheless, there is a need to clarify the contract
language because the parties now are at logger-heads over whether the County can restrict leaves
when mandatory training is being offered. In addition, there is a need for formally processing
leave requests and for obtaining formal management approval because that is provided for in
almost all of the other internal collective bargaining agreements, (County Exhibit 16.3).
The proposal adds that leaves cannot “impair the efficiency of the working units,” and
that the Sheriff or his designee “may establish non-leave or restricted leave periods.” That is
reasonable because the Sheriff at all times must provide the public safety functions demanded of
the Sheriffs Department, which is something that can be achieved only if there are adequate
personnel on the job. That is why individual leave requests must be subordinated to the
Department’s public safety needs.
The last sentence of the County’s proposal dealing with mandatory training also is
reasonable because the County needs the ability to schedule leaves around such training even if
that means switching deputies to another shift, as it is imperative for all deputies to attend the
same training at the same time.
I thus conclude that the County’s annual leave proposal should be adopted, and that it
will become effective upon the issuance of the Award.
Based upon all of the above, it is the panel’s
AWARD
1. That the Guild’s proposal for Release Time For Guild Activities is rejected, and
that the County’s proposal for Release Time For Guild Activities is adopted. The County’s
proposal shall become effective upon issuance of the Award.
2. That the Guild’s proposal on Discharge And Discipline and to add the word
“transfers” therein is rejected, and that the first two sentences in the County’s proposal on
Discharge And Discipline is adopted. The rest of the County’s proposal which seeks to prohibit
the grieving of written reprimands past the second step of the grievance procedure is rejected.
3. That the Guild’s proposal on Wages calling for 4% across-the-board retroactive
step increases for the three years of the agreement dating back to January 1, 2003, is adopted,
and that such increases shall be compounded annually and shall become effective in the first full
pay period following the issuance of the Award. Any retroactive payment shall be paid out by
June 17, 2005, if possible and, if not, by June 30, 2005, at the latest.
4. That the Guild’s proposal to compress the salary schedule is rejected, and that the
County’s proposal to add a new sergeant’s step is adopted. The County’s proposal shall be made
retroactive to July 1, 2003.
5. That the Guild’s proposal on Longevity is rejected, and that the County’s proposal
to make a “housekeeping’’ change to that language is adopted.
6 . That the Guild’s proposal on Assignment Pay is rejected, and that the County’s
proposal on Assignment Pay is adopted, and that it shall become effective in the first full pay
period following the issuance of the Award.
7. That the County’s proposal on Health Insurance is adopted, and that it shall
become effective as soon as practical following the issuance of the Award.
8. That the Guild’s proposal on Dental Insurance is rejected.
9. That the Guild’s proposal on Supplemental Disability Insurance is rejected.
10. That the Guild’s proposal on Hours of Work is rejected, and that the County’s
proposal on Hours of Work is rejected.
11. That the Guild’s proposal to increase the Overtime Compensatory Bank from 40
to 80 hours is adopted, and that it shall become effective in the first full pay period following the
issuance of the Award.
12. That the Guild’s proposal relating to overtime for Court Time is adopted with the
caveat that the reporting time is to be 5:30 p.m., and that it shall become effective in the first full
pay period following the issuance of the Award.
13. That the County’s proposal relating to Overtime Pyramiding is rejected.
14. That the Guild’s proposal relating to Law Enforcement Officers’ Liability is
adopted, and that it shall become effective upon the issuance of the Award.
15. That the Guild’s proposal relating to Educational Incentive is rejected.
16. That the Guild’s proposal relating to Premium Pay For All Holidays is rejected.
17. That the County’s proposal relating to the Annual Leave Approval Process is
granted, and that it shall become effective upon the issuance of the Award.
________________________________
Amedeo Greco, Chair
Interest Arbitration Panel
May 12, 2005
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Date