INTEREST ARBITRATIONS

In the Matter of the Interest Arbitration

 

 

between King County Corrections Officers Guild                                                                

("Guild")

                                                                                                                                    Findings,

            and                                                                                                                  Discussion and

                                                                                                                                    Award.

King County, Washington ("County")

_____________________________

 

Case Numbers:                                    PERC case 21957-I-08-0519.  Arbitrator's case

                                                           No. JC3.

 

Representing the                                 David E. Snyder, and Snyder and Hoag, LLC, PO

Guild:                                                 Box 12737, Portland, OR 97212.

 

Representing the                                 Lawrence B, Hannah, and Perkins Coie, 10885 NE

County:                                              Fourth Street, Suite 700, Bellevue, WA 980004-5579.

 

Arbitrator:                                           Howell L. Lankford, P.O. Box 22331, Milwaukie,

                                                          OR 97269-0331.

 

Hearing held:                                      In Seattle, Washington, on March 16-19, 2009.

 

Witnesses for the                                Doug Justus, Chris Vance, Jared Karstetter, Adrienne

Guild:                                                 Young, Sonya Weaver, Darin Mease, Maria Bentley,

                                                          Matthew James Lewis, Tricia Kenyon, Katerina

                                                          Spinaris, and Henry Cannon.

 

Witnesses for the                                Hikari Tamura, Bob Cowan, Rob Sprague, Mary Beth

County:                                              Short, John McCoy, Donald Dijulio, Gordon

                                                          Karlsson, and Herb Myers.

 

Post-hearing argument                       On or before May 15, 2009.

received:

 

Date of this                                         Monday, June 15, 2009.

award:           

 

 

This is an interest arbitration under the authority of RCW 41.56.450 et seq. The

parties agree that the preliminary requirements of the statutory scheme have all been

satisfied and that all the issues addressed here were properly certified to arbitration. The

hearing was orderly. (fn:1) Each party had the opportunity to present evidence, to call and to

cross examine witnesses, and to argue the case. The parties filed timely post-hearing

briefs.

_______________________

            (footnote 1) The parties agree that the official record of the hearing in this case, including the

transcript of testimony, is in the possession of the County'. The County agreed to become

the guardian of that record and to hold the arbitrator harmless in that regard.

 

                        Statutory authority. The primary controlling statute in this case is RCW

41.56.465(1) and (2):

 

            (I) 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, the panel shall consider:

 

                        (a) The constitutional and statutory authority of the employer;

                        (b) Stipulations of the parties;

                        (c) The average consumer prices for goods and services, commonly known as the

cost of living;

                        (d) Changes in any of the circumstances under (a) through (c) of this subsection

during the pendency of the proceedings; and

                        (e) Such other factors, not confined to the factors under (a) through (d) of this

subsection, that are normally or traditionally taken into consideration in the

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

 

(2) For employees listed in RCW 41.56.030(7) '(a) through (d), the panel shall also

consider a comparison of the wages, hours, and conditions of employment of

personnel involved in the proceedings with the wages, hours, and conditions of

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

United States.

 

            Background. Before 1974, the County staffed its corrections facilities with

Deputies on rotation. The County created a separate classification of Corrections Officers

in about 1974 when it took over housing prisoners of the City of Seattle. Corrections

Officers were initially represented by SEW, which entered into a series of "me-too"

contracts following the Deputy Sheriff's agreements (except for retirement benefits) until

about 1979 or 1980 when Corrections Officers first got a smaller increase than Deputies.

Ever since then the Corrections Officers have sought some form of "parity" with the

Deputies. The Guild took over representation in 1996. The bargaining unit consists of

about 539 Corrections Officers and 40 Sergeants who work in three shifts assigned to one

of the County's two corrections facilities. The older of the two, the King County

Correctional Facility ("KCCF"), opened in 1986 and is spread out over several stories of

a high-rise in downtown Seattle; and the newer Regional Justice Center ("RJC") opened

in 1997 in suburban Kent.(fn:2) Supervisory personnel include about 15 Facility Commanders

and Captains. The prisoner population divides into minimum, medium, close, maximum,

and ultra security; and the County manages the largest psychiatric correctional facility in

the State. Although most bargaining unit members work inside the two facilities, a

substantial number of Corrections Officers are required to accompany prisoners to court

or medical appointments, almost entirely on day shift.

 ___________________________

            (footnote 2) The size of the bargaining unit has varied substantially in the past. For example, it

declined by 40-45 FTE in 2002 when the County shifted some classes of prisoners from

secured detention to other programs, and it has increased as the County has increased the

number of beds it rents to the State.

 

            The parties' most recent, 2004-2006 collective bargaining agreement ("CBA")

covered calendar years 2004 through 2006. Except for bargained COLAs, it was a

rollover from the prior contract. The parties have been in negotiations since December

2006 in search of a successor agreement. Their chance of success in that search probably

dropped to near zero in June, 2008, when the County agreed to a new five-year contract

with its Deputy Sheriffs providing for a 5% increase every year.

 

 

                                                COMPENSATION

            Positions of the parties: The County's general wage proposal. The County

would apply to this unit the same cost of living formula it has extended to most of its

other employees, whether represented or not: it would increase wages on January 1 of

2007, 2008, 2009 and 2010 by 90% of the All.,Cities CPI-W.(September to September),

with a minimum of 2% per year and a maximum of 0%. That formula would produce a

2% increase on January 1,2007, 2.49% on January l ,2008, and 4.88 on January 1, 2009.

In addition to those general wage increases, the County would also prospectively increase

entry step pay for Corrections officers by 8% and increase the 12-month step by 4%. (In

part as a consequence of the proposed increases at the base of the schedule, the County

would convert the current longevity schedule-which is discussed below-from

percentages of base pay to flat dollar amounts. That conversion would not reflect the

proposed 8% increase in entry level pay.)

 

            The parties agree on increases at the top of the Sergeants' schedule. The Guild

accepted the County's proposal to add two new top steps for Sergeants over the course of

the new CBA: Effective January 1, 2007, a step at 48 months, 3% above the current top

step, and effective January 1, 2008, a step at 50 months, at an additional 3% above the 48

month step.

 

            The Guild's general wage proposal. The Guild proposes a 5% increase on

January 1, 2007, followed by a 4.87% increase on January 1, 2008,5.13% on January 1.

2009, and (the parties agree here except for a dispute over 90% vs. 95%) 95% of the All Cities

CPI-W on January 1, 2010, with a 2% minimum and 6% maximum. The Guild

justifies the initial 5% increase by the flat 5% per year increases the County bargained

with the Deputies from 2008 to 2012 and as a return for the County's proposed changes

in discipline and video recording. It justifies the 4.87% proposal for the second year as

100% of the appropriate CPI increase and the third year proposal by reference to comps

(with a nod to the County's discipline and video recording proposals).

 

                        Longevity Incentive proposals. The previous contract between these parties

included a unique "Longevity Incentive" which both parties propose to amend. Here is

that prior language with the Guild's proposed amendments to it underlined and italicized:

 

            Additional compensation added to base monthly salaries of Corrections Officers and

Corrections Supervisor. Calculation of same to be on a percentage basis using the

twelve-month step as the base figure for Corrections Officers hired prior to January 1,

1981, and using the start figure for Corrections Officers hired January 1, 1981.

Amounts as follows:

 

                                    After 6 years of service                       1%

                                    After 7 years of service                       2%

                                    After 8 years of service                       2%       3%

                                    After 9 years of service                       4%

                                    After 10 Years of service        3%        5%

                                    After 11 years of service                                 6%

                                    After 12 years of service                     4%       7%

                                    After 13 years of service                                 8%

                                    After 14 years of service                                 9%

                                    After 15 years of service                     5%       10%

 

The County, on the other hand, proposes to leave the prior language alone except                                

for substituting slightly increased fixed dollar amounts for the currently stated

percentages, thus ending the continuing escalation of the longevity incentive

program-and its cost-as the base of the contract increases. The County argues that

such a change is particularly important in light of the County's current proposal to

increase the base step by 8%.

 

            The increases proposed by the Guild would still leave this "Longevity Incentive"

behind that provided for the Deputies; but none of the comparable jurisdictions exhibits

anything vaguely like this "additional compensation" for Corrections Officers. (Spokane

has a single longevity step at 10 years and Multnomah has one at 14 and one at 20.) The

Guild argues that this proposal would "create a greater incentive for members to remain

with" the County. But this is a cure in search of a problem as far as this record shows: as

indicated below, there is currently no problem of employee retention -as distinguished

from recruitment-in this bargaining unit.

 

            Comparability. This is not an easy unit to determine comparables for.(fn:3) The

statutory language-"like personnel of like employers of similar size on the west

coast"-is some help, but not much. It directs our attention, first, to similarity of size,

and both parties take that to mean primarily population. In the easiest interest case the

arbitrator must chose among employers of similar population, all inside Washington and

within a reasonable distance of the employer at issue. Washington (and Oregon) interest

arbitrators overwhelmingly agree that geographic proximity is important if you can get it.(fn:4)

But similarity of population and geographic proximity do not come together in this case.

King County is one of the most populous counties on the west coast; and, as the Guild

points out, using the traditional selection criterion of 50% -150% yields a set of counties

which are all in California.(fn:5) Washington interest arbitrators have traditionally rejected

such proposals, and I agree that resolving an interest arbitration dispute on such a basis

would render the process abstract and antithetical to traditional collective bargaining. On

the other hand, size counts under this statutory language, and the only way to make size

count in this case is to pay some substantial attention to at least some California counties.

____________________________

            (footnote 3.) As Jane Wilkinson (NAA) observed in City of Camas (2003), "perhaps the easy

ones do not end up in interest arbitration."

 

            (footnote 4.) That preference reflects the underlying realities of two-party collective

bargaining: no comparison is quite as compelling as "what we could get just down the block"

or "what they get the work done for just down the block."

 

            (footnote 5.)The magnitude of the comparability problem with respect to population is

dramatically demonstrated by the Guild's observation (Post-hearing Brief at 15) that the

population of the entire State of Oregon is only about 23,000 over the traditional 150%

comparability cutoff with respect to King County's nearly 1.9 million population.

 

            The County points out, and I agree, that comparisons across state lines are always

somewhat perilous. Comparisons with California jurisdictions are particularly

problematic because, in part, California's property tax initiatives have rendered California

assessed value (and assessed value per capita) data pretty much useless for the purpose of

determining whether California counties are "like employers" in the sense of comparative

wealth and ability to pay.  More fundamentally, California counties are remote from King

County; Of course the Legislature knew that basic geography when it extended the limit

of possible comparables to "the west coast," and this case demonstrates the usefulness of

that extension, because there are no counties of similar population closer than California.

But that does not mean that interest arbitrators should completely ignore the geographical

remoteness of the California portion of comparability data.

 

            Proposed comparables. The Guild proposes three large Washington Counties----

Pierce, Snohomish, and Spokane--together with Multnomah County, the largest county

in Oregon, and four California counties, Riverside, Santa Clara, Sacramento, and San

Bernardino Counties. The County does not vigorously dispute that the proper comparison

here should reflect the first six listed comparators at least in part-not including

Sacramento and San Bernardino Counties. The County notes that these comparators were

successfully used in the mediation process leading to the parties' prior contract.

 

            The first substantial issue of comparability, therefore, is whether or not it is

appropriate to include Sacramento and San Bernardino Counties even though the work

done here by Corrections Officers is done there by Deputy Sheriffs. The County argues

that such a comparison would violate RCW 41.56.465, which directs interest arbitrators

to conduct "a comparison ... of like personneL." In response, the Guild set out to

establish a record of similarity of duties between those Deputies and these Corrections

Officers. As a matter of statutory interpretation the Guild has an uphill battle here. As

the Guild itself points out, "It is well established that this statute requires that Counties be

compared to Counties..." (Post-hearing Brief at 14-15.) But if it is well established that

the statutory term "like employers" requires the comparison of Counties to Counties, it

would be odd, at best, if the term "like personnel," in the expression "like personnel of

like employers" permits comparison of Corrections Officers and Deputy Sheriffs.

 

            I agree with the Guild at least to the extent that the door to such a comparison is

not forever closed. The claim becomes at least colorable when the record shows that

some potentially comparable employers assign to their Deputies the work which is done

here:by dedicated Corrections Officers.  And of course, there is a long tradition in labor

arbitration of paying careful attention to what employees actually do and not , overmuch

attention to what they are called. The determinative issue for application of the term ':like

personnel;" it seems to me, is whether or not the two groups' do substantially the sam;e"

work.  And the record before me simply does not show that Deputies in Sacramento and

Santa Clara Counties do the same work as the County's Corrections Officers. The only

evidence of what those Deputies do consists of their classification descriptions,

which-to no great surprise-encompass both the traditional duties of a road deputy and

the traditional duties of a corrections officer. Guild witnesses testified that they perform

in and around the corrections facilities virtually all of the duties listed in those

documents.(fn:6)   But there is no suggestion in the record that Corrections Officers perform

those duties in the far reaches of a large County, as Deputies ordinarily do, or that those

duties (for Corrections Officers) account for the great majority of their work time, as they

do for Deputies. The Guild's own witnesses agreed that Corrections Officers could not

legally work as Deputies.

_____________________________

            (footnote 6.) Both California and Washington have separate certifications for police and

corrections officers. The very statutory scheme on which my jurisdiction rests distinguishes,

in RCW 41.56.030(7), between "(a). Law enforcement officers ..." and "(b) correctional

employees ..." Moreover, about 330 of these employees do not get the contractual premium

for firearms qualification, which is enough to make the comparison problematic.

 

 

            Equally important, the record does not show that either Sacramento or San

Bernardino Counties have Deputies who perform corrections work on a career or very

long term basis. The record does not show whether Sacramento and Santa Clara Counties

rotate Deputies through assignment to corrections on an annual basis, on any other

periodic basis, or whether those Deputies commonly make long-term, career choices

between assignment to corrections and assignment to the road. lf the record established

that a county had a group of employees assigned to corrections work and nothing but

corrections work on a long-term or career basis, then it would be hard to avoid the

conclusion that those were "like personnel" within the sense of the statute, regardless of

what they were called. This is not such a record.(fn:7) As far as this record shows,

Sacramento and San Bernardino Counties do not have "like personnel" and are not proper

comparators here.

______________________________________________

            (footnote 7.) The Guild objects that failure to make such comparisons would frustrate the

statutory purpose of assuring comparison with the entire West Coast because no comparison

would be possible for California Counties. But, first, not all California Counties assign

corrections work to their deputies, as this record demonstrates; and, second, it is not at all

clear on the face of RCW 41.56.465 whether that statute mandates comparison with a group

of employers chosen to be representative of the West Coast in general (which the statute

certainly does not make explicit on its face) or whether it simply sets out a limitation for

interest arbitrators, i.e. limit your group of comparators to "like employers of similar size on

the west coast." Without counting noses, I suspect that most interest arbitrators take the

latter view and prefer to resolve interest disputes by reference to in-state comparables if

possible. See, e.g., Snohomish County (Jane Wilkinson, NAA, 2007) at 10-12.

 

            Even apart from the issue of Sacramento and San Bernardino Counties, it would

misrepresent the County's position here simply to say that the County accepts these six

comparables. Rather, the County argues that there is no single entirely adequate set of

comparables for King County, and that the best we can do is to keep in mind several

perspectives, one of which is these six Washington, Oregon and California counties.

 

            Net Hourly wages. The Guild's version of "net hourly wage" is the sum or wage,

employer,.paid retirement contribution, employer paid deferred compensation, and

longevity; certification and education premiums, all divided by the scheduled monthly

hours less one-twelfth of annual holiday and annual vacation hours.(fn:8)

______________________________________________ 

            (footnote 8.) County Corrections personnel work eight hours and ten minutes per shift.

 

 

 

Corrections Officer

Sergeant

 

	5 Years	10 Years	15 Years	20 Years	5 Years	10 Years	15 Years	20 Years
Pierce	$32.11	$32.67	$33.11	$33.40	$39.95	$40.65	$41.19	$41.56
Snohomish	$30.24	$31.86	$32.29	$32.44	$36.77	$37.26	$37.76	$37.93
Spokane	$25.14	$28.14	$28.51	$28.89	$33.42	$37.78	$38.28	$38.80
Multnomah	$36.40	$37.19	$38.86	$40.27	$45.08	$46.07	$48.14	$49.88
Riverside	$34.42	$40.03	$40.03	$40.03	$48.16	$54.73	$54.73	$54.73
Santa Clara	$47.34	$50.82	$51.28	$51.75	$64.11	$68.82	$69.44	$70.09
Average	$34.28	$36.79	$37.35	$37.80	$44.58	$47.55	$48.26	$48.83
King	$30.52	$32.78	$33.22	$34.36	$36.15	$37.59	$38.03	$39.27
Difference	-12.30%	-12.22%	12.42%	-10.00%	-23.32%	-26.50%	-26.89%	-24.35%

 

 

But the County argues that these numbers reflect-and reflect quite substantially

-differences in how Washington, Oregon and California deal with public employee

retirement and "certification." Stripping out those factors along with education

premiums, the County argues, the comparators look more like this, depending on whether the Guild's proposal or the County's reflected.

 

 

CORRCTIONS OFFICER

SERGEANT

 

	Start	5	10	15	20	25	sTART	10	15	20	25
Average of comparables	25.72	33.23	34.67	35.25	35.69	36.04	36.16	44.29	45.01	45.56	46.02
County's Proposal	25.57	33.54	35.98	36.43	37.24	38.10	36.93	44.19	44.19	45.18	46.21
difference	-0.6%	-0.9%	3.6%	3.2%	4.2%	5.4%	2.1%	-0.2%	-1.9%	-0.8%	0.4%
Guild's Proposal	24.99	35.42	39..14	41.01	41.93	42.89	40.22	47.75	50.02	51.14	52.31
difference -2.9%	-2.9%	6.2%	11.4%	14.0%	14.9%	16.0%	10.1%	7.2%	10.0%	10.9%	12.0%

 

 

The spread between the two tables is obviously substantial. The difference is a

product, in part, of the parties' differing proposals to change the "longevity incentive"

(discussed immediately below); the rest of the difference rests on the Guild's inclusion

-and the County's exclusion--of retirement benefits and certification and educational

premiums.(fn:9)

______________________________________

            (footnote 9.) In the best possible case, both parties in an interest arbitration "show all their

work" in such an analysis so that an interest arbitrator can adjust for factors that he or she

finds to be improper, and the parties critique one another's data and calculations on the

record and respond to those criticisms. This is not such a case. Although the parties raised

some particular objections to one another's data during the four day hearing, the Guild's

Post-hearing Brief does not take issue with the accuracy or (modest) transparency of the

County's numbers; while the County notes in general that it "has been unable to validate

many of the Guild's posted rates." (Post-hearing Brief at 81.) (The County argues that the

Guild appears to have used 8 hours a day-rather than 8. 17-for daily leave deduction.)

            The County argues that the public retirement systems in Washington, Oregon and

California are so different as to defy comparison. Oregon and California allow retirement

contribution "pick-up" by a public employer, which Washington does not, and there are

structural differences in retirement funding between Washington and Oregon or

California. But as the Guild points, out none of those distinctions makes much difference

from the employee's point of view (the statute compares benefits, not costs); and I agree

that the inclusion of employer retirement contributions was proper.

 

            The Guild also included certification and education premiums in its numbers; and

there the argument falters. This brings us to a systematic quandary in making wage

comparisons: employers commonly offer premiums to employees which only some of the

employees avail themselves of, so how are we to address those factors in making cross

employer compensation comparisons? Education and advance certification premiums are

obvious examples. One solution is to establish what amounts to a "close enough" trigger

for treating that premium as if it applied universally. For example, in Washington State

Patrol and WSPTA (Lankford, 2008) at 14, N20., I found, "The Association uses an 80%

cutoff, i.e. a benefit received by 80% of the unit is treated as if it were received by all, and

a benefit received by less than 80% is treated as if it were received by none. * * *" That

was a reasonable trigger point. But the record here does not show what percentage of

employees qualify for the respective education and certification premiums; and it appears

that those:premiums make a substantial difference in the compensation totals. (fn:10)

_____________________________

            (footnote 10.) As the County points out, it would be odd to base King County base

compensation rates on increased training that has not been acquired for P.O.S.T.

certification. On the other hand, the County wonders about inclusion of the firearms

qualification premium which, according to the Brief, is received by almost half of the

bargaining unit. The answer to that one is that it falls far short of any reasonable "close

enough" trigger.

 

 

            Alternative comparables. Although the County does not challenge the relevance

of the six comparables that were used in the successful mediation of the parties' prior

agreement, it insists that that set of comparables is so marginally satisfactory that other

comparisons should be considered too. Washington interest arbitrators have been notably

reluctant to consider California comparables unless driven to that extremity. That

reluctance is based not only on distance, but also on the dissimilarities between

Washington and California economic climate and public sector finance and retirement

funding and on the fact that the important comparison criterion of assessed valuation is

not meaningfully available with respect to California public employers. Perhaps an

interest arbitrator who has a clear and compelling analysis of one set of comparables

should leave well enough alone, even if that set necessarily includes California

employers. But this is not such a case. Here I have one set of numbers that includes

unsupported reference to education and certification premiums and another set of

numbers that does not include retirement benefits. Under those circumstances it is not

unreasonable to consider an alternative perspective.

 

            The alternative perspective provided by the County focuses on proximity and

leaves out the distant California employers. That would not be reasonable as a primary

comparison because, as indicated above, King County has no population peer in

Washington or Oregon; but it is useful as a second and rather distorted perspective. Here

are the County's numbers-not reflecting retirement income-comparing the County's

proposal with the average of Pierce, Snohomish, Spokane and Multnomah Counties:

 

Corrections Officer                                                                                                     Sergeant

 

Years	Start	5	10	15	20	25	Start	10	15	20	25
Average	24.09	31.65	32.85	33.58	34.13	34.56	34.63	41.31	42.22	42.91	43.44
King	25.57	33.54	35.98	36.43	37.24	38.10	36.93	44.19	44.19	45.18	46.21
Difference	5.8%	5.7%	8.7%	7.8%	8.3%	9.3%	6.3%	6.5%	4.5%	5.0%	6..0%

 

 

Not only is the County substantially ahead of the Northwest average at every period of

service, the County leads this pack in every particular except that Pierce County is

slightly higher for the first and second Corrections Officer steps and Multnomah County

is slightly higher for a 20 year Sergeant.

 

            Ability to Pay. Two features of the County's financial condition stand out. First,

the County is fiscally sound. As the Guild is quick to point out, its current adopted

budget includes over $17M in Salary and Wage Reserves and another million of Salary

and Wage Contingency Fund. Since 2005, King County has been rated AAA by bonding

services, based in part on the County's determination to maintain a 6% UFB reserve and a

$15M "rainy day" fund.(fn:11) (Reducing the UFB below 6% for any substantial period would

probably reduce the County's credit rating, and a one notch decrease (to AA+) would

increase its borrowing costs by about .2%.)

___________________________

            (footnote 11.)The "rainy day" fund is aptly named, since it is restricted, for the most part, to

potential costs of natural disasters. The Guild notes that the County has not maximized its

property tax income and taxed at only about 60% of its legal limit from 1998 through 2001.

 

            Second, it comes as no surprise that the County has suffered a substantial

budgetary shortfall and resulting program reductions in 2009. The County announced

stringent hiring controls in March of2009. Overall, the 2009 deficit is about $93.4M.

The magnitude of the impact of the "current economic downturn," as this period is now

frequently called, on the County's General Fund is perhaps best illustrated by this

eloquent fact: The decrease in the General Fund over the four years from 2002 through

2005, following 9-11 and the bursting of the dot-com bubble, was about $137M, and the

single year deficit for 2009 is over $93M. The projected budgets for 2010 and 2011

show deficits of $40M and $60M respectively.(fn:12)

___________________________

            (footnote 12) The County argues eloquently and convincingly that, in addition to the impact of

the current economic downturn, its overall budgetary problems are "structural," i.e. the

Legislatively mandated income limits are inadequate for the required expenditure levels.

 

            For an interest arbitrator, no indicator of economic distress is more compelling

than layoffs. The term "layoff' in this context has at least three distinct senses, which are

all illustrated in the case at hand: the County's 2009 Executive Budget included the

elimination of 390 "positions"-sometimes loosely referred to as "layoffs"-but the

majority of those reductions were accomplished through attrition and leaving positions

vacant. (fn:13) 126 existing employees received October, 2008, notices of possible layoff at the

turn of the year-a somewhat more concrete sense of "1ayoff''-and 63 employees

actually lost their jobs on January 1, the most brutal sense of "layoff," sometimes referred

to as "bodies out the door."

___________________________

(footnote 13.) I do not mean to trivialize the consequences of leaving positions vacant. When

the positions at issue would otherwise be occupied by public servants providing safety net

social or health services, for example, leaving them vacant can have a substantial and

immediate impact on the community. Unfortunately, the County's discretionary expenses

are largely in public health, human services, and parks.

 

            In addition to those 63, another 134 County employees are on notice that their

positions are temporarily funded by "one time" money which will run out at the end of

unless the County receives some assistance from the Washington Legislature.

These employees are tied to services that the County could legally eliminate or reduce.

The County has spotlighted the financial precariousness of those services by funding

them with $8.2M which was set aside in the 2008 budget as "out-year deficit reserve."

The Guild points out that relief from the State Legislature is possible, and, of course, that

was the whole point of painting these programs as occupants of a fiscal "lifeboat."

 

            The County has also substantially shut down many of its facilities for ten days

during 2009 and bargained its way to a ten-day "furlough" agreement for most

 employees.(fn:14) That amounts to the equivalent of about a 3.85% reduction in 2009 wage

costs. But, or course, that wage reduction comes at the cost of a proportional reduction in

services; and, from a services point of view, the furlough deal amounts to a form of

borrowing, because the furloughed employees are compensated by ten days of "furlough

replacement time" during 2010 and 2011.

__________________________

            (footnote 14.)Twenty-seven unions represented the affected employees, and all twenty-seven

agreed.

 

            None of these layoffs, in any sense, has come from the Corrections bargaining

unit, of course, since corrections is one of the least elastic legally mandated functions of a

county. In fact, systematic declines in jail census, rather than occasioning layoffs in the

corrections workforce, actually allow the County to rent unused beds. For example, in

2009 the State's contract with the County increased from 220 beds to 445, adding about

$7M to the Department's gross income. That outside income came with some operational

costs-mostly in the form of about $2.5M in labor costs for Corrections Officers. That

left a net gain for the County of about $4.5M. (The current prisoner average population is

down by about 300, which may make additional beds available to contract out, but the

County has not yet identified the reason for the decrease and therefore cannot yet count

on its continuation.)

 

            Cost of Living. Employees in this bargaining unit have received a series of cost

of living increases-and no other increases-since 2003; and all of those have been at

less than 100% of the CPI. It would be arithmetically odd if that cumulative history did

not leave these employees behind the increasing cost of living over that period.

 

            The Guild points out that the CPI'"W (all Cities) numbers agreed to in the parties'

prior contract would produce these increases if extended into this one:

2006 CPI increase of 1.7%----> 2007 increase of 1.62% (at 95% of the CPI)

2007 CPI increase of2.8%---->2008 increase of2.66% (at 95% of the CPI)

2008 CPI increase of 5.4%---->2009 increase of5.13% (at 95% of the CPI)

The Guild notes that this cumulative 9.9% increase in the cost of living over that three

year period would outstrip the County's proposed 9.37% increase for that period.

                       

            Recruitment and Retention. Hiring competition for Corrections and Police

positions has never been sharper or the market more open, since the compensation factors

for many employers are now set out side by side on web sites such as

LawEnforcement.com and PublicSafetyTesting.com (which the County uses as part of its

recruitment and screening program). The County devotes substantial resources and

personnel to recruitment and has hired more that 150 Corrections Officers since 2006

-but only about 17 in 2008-out of more than 1800 applications.(fn:15) On the other hand, at

the time of the interest arbitration hearing, the County was trying to fill 39 Corrections

Officer positions, some of which had been open for over a year; and the County has had

active open positions since at least 2006. The County's proposal to increase the bottom

end of the pay schedule is eloquent testimony to a serious recruitment problems: The

County argues that its recruitment problems largely result from particularly low base

steps. While the Guild does not entirely disagree with that claim, it argues that the proper

remedy is to raise the entire schedule rather than focusing on the base alone.

______________________________

            (footnote 15.) It costs the County over $12,000 to train a new Corrections Officer; and when

backfill costs are added that number doubles.

 

            The record shows an admirable history of employee retention; and the County's

2008 gross turnover rate of 5% in this bargaining unit compares favorably with the

Corrections Yearbook's national average of about 17%.(fn:16) Even the recent high of 7% "all

causes" attrition in 2005 was modest.

______________________________

           (footnote 16.)The Guild claims that some Corrections Officers have gone to Pierce County

because of higher pay and lower costs of living; but the Guild does not identify any

Corrections Officers who have left County employment and moved to Pierce County. In

fact, no witness for either party identified a Corrections Officer who has left the County to be

a Corrections Officer elsewhere.

 

            Internal comparability. Both parties argue that internal comparability should be a

significant factor in this case, although that claim takes them in very different directions.

The County argues that I should give great weight to the fact that the vast majority of its

many bargaining units-and its unrepresented employees-have all accepted the

traditional COLA formula which the County offers in this case: 90% of the prior CPI

with a minimum of2% and a maximum of 6%. The Guild, on the other hand, points to

the Deputies' recent contract and its; 5% increase every year from 2008 to 2012. (The

Guild also points to the higher compensation rates for the County's 32 Corrections

Program Specialists (and supervisors), who work just off the floor evaluating the

placement of inmates, work that was once done by Corrections Officers  (fn:17). That new

Deputy Sheriffs' settlement, more than any other economic consideration, may be what

drove these parties to interest arbitration.

______________________________

            (footnote 17.) The Guild argues that these employees are substantially overpaid, so they are not

compelling internal comparables. The Guild also points to the new Seattle Police Guild

contract which the Guild characterizes as providing a 36% increase over four years.

 

 

            Interest arbitration serves the public interest best to the extent that it focuses on

the same things that drive or frustrate settlements in two-party collective bargaining.

Unless there are acute problems of recruitment, public employers almost always hope to

sell the same compensation package to all their various bargaining units. And

Corrections Officers have sought "parity" with Police Officers (and Deputies) as long as

there have been two separate professional certifications for those two related functions.

In the case at hand, within the memory of many of the Corrections Officers the jail was

operated by Deputies rotating through that assignment; and the County continued strict

pay parity until about 1982 or 1983. That history is typical of the specialization of

corrections work and its separation from police work in general

                       

            Nonetheless, there is a limit to the usefulness of comparing increases in

compensation, as distinguished from rates of compensation.(fn:18) Those two sorts of

comparisons cannot be mixed without running into serious arithmetic problems. Even

though increases in compensation is an appropriate "other factor" to be considered under

the Washington Statute, that Statute directs an arbitrator's attention to rates of

compensation. In a nutshell, the problem is this: if we try to keep rates of compensation

comparable, then it may occasionally be necessary to make unusually large (or small)

increases when the system has gotten out of whack. If, on the other hand, we try to keep

increases more or less the same, then whatever imbalance there may be in compensation

rates, that imbalance is set in stone and cannot be redressed because the goal is for

everyone's compensation to increase at the same rate. That second alternative-is

inconsistent with the language and spirit of the Washington Statutory scheme. So a

comparison of increases, rather than of comparable pay rates, should not be a primary

factor, regardless of whether it is urged by an employer or by a union.

____________________________

            (footnotes 18.)  Appeals to internal comparability usually turn the discussion from a comparison

of rates of compensation to a comparison of increases in rates.

 

            The Guild also argues that the County came up with the funding for an increase of

25% over five years for the Deputies and, can, hardly be heard to, cry poor when it comes

time to deal with the Corrections staff. I certainly agree with the Guild that the deal with

the Deputies suggests an ability to pay substantial increases. But there are three important

limits to that conclusion: First, the Deputies' agreement was reached in June, 2008, well

before the November economic collapse, when the national and local economies were

humming merrily along. Second, the pay increase for the Deputies bought the County

civilian oversight-a famously expensive contract concession in police contracts-and a

change in insurance language. And third and most significantly, this record does not

show the comparability situation the County found itself in when bargaining with the

Deputies. Deputy Sheriffs, too, have access to interest arbitration, and nothing in this

record suggests that the County's deal with the Deputies was not reasonable in light of

what both of those parties could guesstimate as the range of possible results in that forum

based on the Deputies' comparability.

 

            Discussion. Four features of the record are compellingly clear: First, there is no

dispute about the County's ability to fund a substantial compensation increase, even

extending to the increase proposed by the Guild. Second, despite that ability to pay, it is

clear that the County faces extraordinary limitations on its ability to continue important

programs in health and social services-the non-mandates portion of its service

package-in the current economic climate. Sixty-three actual "out the door" layoffs, 134

more on notice of precarious funding, and ten days of partial service shutdown (borrowed

from down-stream years operations) all speak more eloquently than any budget analyst.

And in terms of budget analysis, the County now faces a single year General Fund

decrease that amounts to over two-thirds of the total decrease over the four years from

2002 through 2005. Third, there is no substantial sign of a retention problem for

Corrections staff; but there is no dispute that the County has continuing recruitment

problems. (The Guild does not really argue that the base is not too low; instead, it claims

that the entire schedule is too low.) Fourth, before the beginning of the current economic

downturn, the County entered into a very expensive contract with the Deputies (partially

in return for civilian oversight and insurance language); and even the Guild does not

claim that comparability data can now be put together to justify extending a similar

contract to Corrections staff.

 

            Against that fairly clear background, I have comparability data that shows that a

substantial part of the Guild's claim of a compensation gap:rested on comparison with

two California Counties which have no dedicated corrections staff, and the rest comes

from the inclusion of very distant California Counties. There is no way to minimize the

significance of compensation rates in those Counties, because without them that data

comparability ability picture would be entirely composed of employers very much smaller than

King County. But even with Riverside and Santa Clara Counties in the mix, the Guild's

picture of comparability depends substantially on education premiums and certification

premiums which, as far as the record shows; a substantial portion of this unit may not be

entitled to.

 

            On the other hand, the comparability data show clearly enough that the Guild is

too far behind to accept the same COLA deal that the County worked out with its non interest

abritrable employees. Rather, I will adjust that formula in two respects, both of

which have precedents in the County's recent contract history. (fn:19) Every January first, in

2007, 2008, and 2009, the County will increase the salary schedule by 95% (not 90%) of

the prior September to September change in the All-Cities CPI - W Index, with a

minimum of 3% and a maximum of 6%. This is in addition to the two additional steps

for Sergeants (which the parties agree to) and the 8% increase in the entry step and 4%

increase in the 12-month step for Corrections Officer proposed by the County. The

Longevity Incentive language of the contract shall remain unchanged, which means that

the entry and 12-month step increases will significantly affect longevity pay.

_________________________

            (footnote 19.) The Guild's most recent CBA was 95% rather than 90%; Transit employees have

a 3% floor.

                                    

 

            The County vigorously argues against blanket retroactivity for individuals who

passed through the bargaining unit during the very long bargaining and interest arbitration

period leading up to the new contract. In reply, the Guild cites (Post-hearing Brief at 44)

my prior award in City of Kelso and Kelso Police Officers Assn (2001):

 

            But if interest arbitration awards are not commonly retroactive to the expiration of the

            prior agreement, that creates an obvious pressure to initiate the interest arbitration

            process far enough in advance to avoid the retroactivity problem, regardless of whether

            two-party bargaining has really been exhausted or not. Second, leaving long periods

            between collective bargaining agreements, and without orderly wage and benefit

            provisions, does not seem to serve the stated legislative intent and purpose of the

            statute: "to promote such dedicated and uninterrupted public service there should exist

            an effective and adequate alternative means of settling disputes."

 

But the County offers a substantially new argument on this issue: Not only can former

employees be hard to find, but RCW 63.29.150 to 63.29.190 provides that wages

unclaimed for more than a year are presumed abandoned and eventually escheat to the

State. I agree-and the Guild may agree as well-that there is no point in transferring

County funds to the State as part of this award. The award shall apply retroactively,

therefore, to current employees and to former employees for whom the County has a

freshly confirmed current address. The Countys, has attempted to establish freshly

confirmed current addressed by sending out notices of the award within 30 days to

inform the County of their current address. (The Guild may also take steps to encourage

former employees to file a current address with the County) Any former employee for

whom the County has not freshly confirmed a current address by the end of that 90 day

period is not within the scope of this Award.

 

                                                MANDATORY OVERTIME

            The County's current staffing levels require many posts to be filled on overtime.

The Department maintains a voluntary overtime list; but that list frequently falls short.

The County has some discretion about staffing levels at the RJC; but KCCF operates

under a consent decree(fn:20) following a federal suit over inmate safety, so there is less

elasticity in its staffing requirements.(fn:21) By policy-which became a LOA during the

interest arbitration hearing-the County does not assign a Corrections Officer to

mandatory overtime a second time within a "ten-day wheel" unless there is no other way

to fill the slot. The Guild proposes to provide a structural disincentive for staffing at a

level which leaves the County with no alternative to frequent mandatory overtime:

_________________________

            (footnote 20.) Technically, the County must abide the detailed staffing minimums of the 1998

"Hammer Agreement" with the ACLU which superseded the terms of the consent decree.

 

            (footnote 21.) For example, the Regional Justice Center-which is designed along quite a

different corrections philosophy than KCCF, and which is not operating under the consent

decree-has the option of limiting mandatory overtime to four hours by locking down cells.

            Effective January 1, 2010 any employee required to work mandatory overtime within

            ten (10) days of previously working mandatory overtime shall be paid double time for

            such mandatory overtime hours worked within ten (10) days of previous mandatory

            overtime.

 

What the Guild branded as "the plague of mandatory overtime" is an old issue

between the parties. The Guild has vigorously pursued every avenue-including

possible County or State legislative action-in search of a remedy for the problem of

excessive mandatory overtime, all without success. Although the County suggests that

the worst days are now in the past, the Director of the Department issued a memo to all

staff in October, 2007, noting "we see the level of mandatory overtime reaching levels

never seen before," and the County Executive's 2008 budget message noted that

Corrections Officers "need our help" and recommended an additional 32 positions, which

the Council eventually approved. (The Executive planned to add 26 more positions in

2009.) On December 5, 2007 the Facility Commander for KCCF issued a general memo

thanking the entire staff for their work after the entire third shift was required to stay over

for mandatory overtime:

 

            Especially 3d Shift. You are assigned to the smallest shift, and you unfortunately have

            to backfill the largest shift along with Court Detail in the morning. You have been

            tasked with working mandatory overtime for months-on-end, and yesterday  morning

            was the pinnacle. I know that on many occasions, the 1O-day wheel is moot, based on

            operational need. I know that sleep, family matters and other personal issues are

            constantly put aside for the" operational need." I know that yesterday, ten officers were

            mandatoried the day before, and nine other officers were mandatoried just the day

            before that.

 

The problem has not gone away: There were a bit over 32,500 hours of mandatory

overtime in 2008.(fn:22)

_________________________________________________

            (footnote 22) The County notes that data seem to show the situation is improving; but an

"improving" situation reflects, in part, just how bad it was at the worst. In early January of

2007, for example, 14 Corrections Officers worked mandatory overtime two days in a row

and three of those worked mandatory overtime three days in a row. On Christmas Day,

2007, 29 Corrections Officers were held at work for mandatory overtime; and that followed

Christmas Eve, when 14 Officers were required to work 16 hours. In January of2008 the

entire third shift at KCCF was again held over for mandatory overtime.

 

            I will not detail the volumes of testimony and exhibits bearing on this issue,

because there is no significant dispute in the record before me that the County's

dependence on mandatory overtime is not in the public interest. There are two, equally

compelling bases for that conclusion beyond the traditional reference to "morale."(fn:23)

___________________________

            (footnote 23) Much of the discussion of mandatory overtime, in the many studies in the record,

is couched in terms of "employee morale." (For example, a 2006 study by the National

Institute of Corrections begins with the observation that "The impact of mandatory overtime

on the workforce at KCCF cannot be underestimated." and ends with the conclusion that

"This is one of the most significant factors affecting employee morale.") Employee morale is

certainly important, but the record here provides bases for resolving this issue which are

more concrete than that.

           

            First, the use of such frequent and repeated mandatory overtime is neither safe nor

efficient. No County witness contested that fact. The most dramatic example of acute

safety concern involves armed Corrections Officers accompanying prisoners on medical

or court appointments. About 250 members of this bargaining unit get the contract's

premium for firearms qualification. What public observer in a King County courtroom

would fail to be outraged to [md that the armed Corrections Officer responsible for the

security of a potentially violent prisoner was functioning on four or five hours' sleep in

the last 28 hours? (I.e., two, eight hour shifts, an eight hour break less transportation

time, and mid-way through the next regular eight hour shift.) There is no dispute at all

that it should be "a health and safety priority to reduce the need for mandatory overtime

to a minimum.. ." (quoting the County Executive in 1998). Moreover, within the walls of

the corrections facility, it makes no sense to ignore the obviously reduced efficiency and

effectiveness of staff in such situations.(fn:24) As the Guild points out, the problem shines

forth from the Department's own disciplinary records: the second most common alleged

offense is sleeping or inattention on duty, and the third is answering back or bickering

with superior officers. (fn:25) The Commander of the KCCF testified that excessive mandatory

-'overtime causes concerns about the~reduced attention to duty of fatigued Corrections- '

Officers. To repeat, there is no substantial dispute in the record before me-'-or in

,common experience-that frequent mandatory overtime cuts a Corrections Officer's

patience and tolerance down to a bare minimum. Apart from the inefficiency of such an, ,

operation from the County's point of view, neither the prisoners nor the prisoners' "

security are well served by having Corrections Officers work under such conditions.

___________________________

            (footnote 24) Employees sometimes offer the lame "up-too-late-short-of-sleep" explanation for

unacceptably poor performance. And employers inevitably reply that it is the employee's

obligation not to do things off duty that interfere with his or her ability to perform while on

duty. Here, the County's assignment of overtime is its own enemy of employee performance.

 

            (footnote 25)The very most common disciplinary allegation involves absence or tardiness

after an employee's leave balances have all been used up.

 

            Second, not only is such dependence on mandatory overtime unsafe and

inefficient, it is cruel. In addition to the increased employee stress level caused by the

uncertainty of work schedules, and the continuing frustrations of attempts to schedule

one's non-working life, frequent mandatory overtime deprives the employee's entire

family of his or her dependable presence. It represents missed soccer games and

birthdays and band concerts. It represents, as the current KCCF Commander put it, a

potential for worrying about who will put the dog out just when an Officer should be

paying attention to a task at hand. In a professional field already characterized by one of

the highest divorce rates, such frequent mandatory overtime is, as the Guild says,

inhumane.(fn:26) The County can do better than this by its employees.

___________________________________________

            (footnote 26) Overall; the record shows that the County has taken several steps the reduce the

impact of excessive mandatory overtime. But it has occasionally failed in that regard, For

example, in September of2008 a Corrections Officer was required to stay on the clock after

the end of her second, mandatory full shift, in order to complete a regular report, thus cutting

into the eight hours remaining before she had to report for her next regular shift.

 

            The County's argument against the Guild's proposal is not compelling. It appears

that regardless of the authorized size of the corrections workforce, the County attempts to

optimize staff size: i.e. it tries to hire just enough Corrections staff to avoid having

overtime costs exceed regular staffing costs.(fn:27) In that calculus there is no input for

concerns over the safety, efficiency or cruelty of frequent mandatory overtime. In the

light of that uncontested record, the County's argument that "MOT is unavoidable" is not

persuasive. On the contrary, it is appropriate to supply an economic motive, as the Guild

proposes, an economic disincentive to staff at a level that requires too-frequent mandatory

overtime.(fn:28)

 ___________________________________________ 

              (footnote 27) The County's staffing model has not changed substantially in in this regard since

1999 when the County Auditor reviewed the period from 1994 through 1998 and found that

"To cover staffing needs at the jail, DAD commonly uses overtime instead of increasing the

number of corrections officers." County witnesses testified that the County Auditor agreed

with their staffing model, which is a bit odd in light of the Auditor's conclusion in 2006-in

answer to the question, "Is overtime more expensive than hiring full-time staff?"-that

increasing full-time staff is very narrowly less expensive than the total cost of covering a

reasonably predictable vacancy on overtime.

 

            (footnote 28.) The County also argues that double time for over-frequent mandatory overtime

may be a disincentive to volunteer for overtime; and that is a serious potential down side of

the Guild's proposal. But in that case the data will show a proportional drop in voluntary

overtime and increase in mandatory overtime and the County will be well positioned to end

the double time disincentive, through interest arbitration if necessary, or to consider other

alternatives such as double time for all overtime within the ten day wheel, whether voluntary

or mandatory.

 

            The County points out that mandatory overtime within the ten day wheel for the

first quarter (almost) of2009 has declined to just about 4% of the total mandatory

overtime for that period, and most mandatory overtime assignments during that period

have been for four hours or less. But this provision will not take effect until January 1 of

2010, and if the problem really has been solved on a long term basis by that time then the

double time provision will have no significant financial impact on the County.

           

            At the other extreme, if the problem is not solved even after the new double-time

language goes into effect, the Guild always has the option of asking a subsequent interest

arbitrator to make excessive mandatory overtime cost however much it takes to end the

County's dependence on excessive mandatory overtime.

 

            The interest arbitration award includes the Guild's proposed language on

mandatory overtime set out above.

 

                                       ARTICLE 3, C - DISCIPLINE

 

In 1988 the parties adopted a practice of delaying the imposition of suspensions

until after the resulting grievances have been resolved. (The parties disagree about

whether that agreement also extends to a Letter of Reprimand, which has the effect of

foreclosing special assignments or training for a year.) The County proposes to end that

practice by adding a final sentence to this sections:

 

            Discipline, including but not limited to suspending, demoting, or dismissing

            employees for just cause; provided that where a transfer is intended as a disciplinary

            sanction, it is subject to the Just Cause requirement. Discipline shall be imposed upon

            final decision, regardless of whether or not the employee or Guild grieves said

            discipline.

 

            The County points out that the current agreed practice has led to shocking results

such as a three-day suspension from 2005 which is still pending in the grievance process.

And the Guild quite frankly admits that it automatically grieves every suspension. But

nothing in the record explains why the County cannot move such a grievance through the

process in an orderly and reasonably expeditious manner.(fn:29) The County claims that it has

been hard to schedule grievance hearings; but it does not explain why it does not simply

do it, nor does the County claim that the language of the grievance provisions deprives it

of the authority to move through the steps of the process. Not counting time for

responses from the County, the existing grievance language gives the Guild ten working

days to move a grievance from Step 1 to Step 2, ten working days to move it on to Step 3,

and 30 days to request arbitration.(fn:30) If we add five working days per step as a reasonable

time for responses from the County the resulting picture is fairly typical of public sector

grievance timelines and certainly does not allow a 2005 grievance to be unresolved four

years later.

____________________________

            (footnote 29). The Guild argues that the County is so short-staffed that it is not genuinely eager

to actually enforce a suspension.

 

(footnote 30). Like most grievance language, there is a limit here on the union's opportunity to

contest each level of decision, but there is no stated limit on the employer's opportunity to

respond except that failure to respond within stated time limits allows the Guild to advance

the matter to the next step. The Guild's General Counsel frankly testified, "I let it sit." Of

course he does. But that obvious gambit has an equally obvious and adequate response:

Move it along.

 

One of the first rules of thumb for interest arbitrators in dealing with language

-i.e., non financial-proposals is the time-honored "If it ain't broke, don't fix it." A

corollary to that rule is that interest arbitrators should generally be unwilling to change

existing language in order to help a party that has not taken reasonable steps to help itself

under that language. In this instance, I cannot tell whether or not the existing language

"is broke" because the record does not show that the County has made a reasonable effort

to make it work. The County's discipline proposal is not part of the Award.

 

                                                VIDEO RECORDING

 

            Both corrections facilities are equipped with cameras which are monitored in the

control rooms. The parties dispute the County's right to hasten the addition of video

recording for those camera systems. The County proposes this addition:

 

            Video Cameras: to enhance the utility of video cameras, the Department may add a

            recording capability to video cameras in all facilities. Video recordings shall only be

            reviewed in connection with a specific concern or a specific incident. An employee

            who is the subject of an investigation shall be allowed to privately view the video with

            a:Guild representative prior to his/her interview concerning the alleged misconduct.

 

The Guild proposes to postpone resolution of the recording issue:

 

            Video Cameras: Recognizing the immediate need to address the County's understaffing

            issues, ongoing mandatory overtime crisis, need for careful planning of any video

            recording program, the substantial cost of implementing and operating video recording,

            and other immediate issues facing the County and the Guild, the parties agree that no

            video recording will be implemented in any facility where Guild members work during

            the term of this Agreement. The parties agree to meet upon reasonable request during

            the term of this Agreement to discuss video recording. The County may propose

            implementation of video recording in the negotiations for a successor agreement. The

            parties agree that if [any] video recording is implemented at some time in the future (1)

                       

Video recordings shall only be reviewed in connection with a specific concern or a

specific incident, (2) An employee who is the subject of an investigation shall be

allowed to privately view the video with a Guild representative prior to his/her

interview concerning the alleged misconduct and (3) No employee will be disciplined

based solely on a video recording.

 

            Those proposals present two principal issues: First, video recording now or later?

And, second, shall discipline be allowed "based solely on a video recording?"

 

            In April, 2007 the County retained a consultant to evaluate its existing video

equipment and the process toward optimizing the use of video equipment. The consultant

found 371 existing cameras at KCCF and 76 existing cameras at RJC; and it

recommended an additional 263 and 189 additional cameras at those respective facilities

along with the gradual introduction of recording capability at both facilities. As the initial

step in that direction, the County has tentatively funded the addition of69 new cameras at

KCCF and 45 new cameras at the RJC. All these new cameras will come complete with a

recording feature, in addition to which recording would be added to eight previously

existing cameras at KCCF and to two previously existing cameras at the RJC (all

covering areas where female inmates interact with staff). These additions do not come

cheap. The budgeted funding for that first step amounts to about $3.1M ($210,000 for

design, $2.5M for construction and equipment, and almost $400,000 for administration),

The Guild argues·thatsuchfunding.sholJ1d bedev.otro to pay. increases; and the County points.

out that it "can be a bargain compared to the cost and risks of expensive inmate

lawsuits."

 

            The County points out that at least five of the comparable counties make

extensive use of video cameras (Riverside did not respond to inquiry), and four of those

five make use of recording-Pierce County does not have recording capabilitywithout

any specific procedural limitations on the potential disciplinary use of those

recordings.

 

            It is pretty obvious that Officers reviewing the input of 447 existing cameras (371

+ 76) in real time have no chance of seeing everything the cameras see.(fn:31) Moreover,

those Officers currently cannot go back and look again, cannot slow down what they are

watching, and cannot call for a second opinion or ask the subject Officer (or prisoner) for

his or her explanation of what seems to be happening on camera. The Guild's suggestion

that the current, unrecorded system is equal to a recorded system is simply not credible.

Recordings can potentially help defend corrections staff from unfounded prisoner

complaints as well as uncover employee misbehavior.

____________________________

            (footnote 31). There is also some potential protection for staff in the prisoners' inevitable

realization that they are being recorded. Some Guild witnesses wondered whether prisoners

know that there is currently no recording, but prisoner populations are notoriously

knowledgeable about administrative details far smaller than that.

 

            The Guild resists the recording proposal on the grounds that the current system is

adequate. But the County quite compellingly points to the conviction of five male staff

for sexual misconduct with female prisoners between 2000 and 2005. The ultimate goal

of video surveillance and recording is not so much to catch those who engage in such

misconduct as it is to prevent the misconduct in the first place. The Guild does not

defend such employee misconduct, of course; but it argues that cameras can sometimes

miss important parts of the story, including particularly the accompanying audio (which

the cameras do not report or record). The County does not argue that the contemplated

incremental move to recording is a perfect solution, but only that it is an improvement

("80 or 90% of a loaf is better than none"). I agree. On the basis of this record the

County's argument is compelling: there is no good reason to wait until another contract to

put the parties' agreement about video recording into effect.(fn:32)

____________________________

            (footnote 32). The Guild's resistance to video recording in corrections facilities may be similar

to postal employees' resistance of automation or longshoremen's resistance of containerized

freight.

 

            That leaves the Guild's proposal for a third protection: "No employee will be

disciplined based solely on a video recording." My hesitation in adding this protection is

that it seems to be encompassed in #1: "Video recordings shall only be reviewed in

connection with a specific concern or a specific incident." It seems to me that there could

be situations in which the basis for the County's initial concern (which led to the review),

together with what shows up on the tape, would be an adequate basis for discipline

of the proposed #3 seems to mean that discipline would require (1) the basis of

the initial concern, (2) what shows up on the tape, and (3) something more. But a basis of

inquiry plus the content of the tape at least could be an adequate basis for disciplinary

action in some instances. The award will include the language proposed by the County.

 

                                    PERSONNEL GUIDELINES

 

                        The County proposes to add a new Section H in the Management Rights Article:

 

            Unless specifically negotiated otherwise or contradicted by a specific provision of this

            Agreement, the 2005 King County Personnel Guidelines shall cover all employees and

            classifications in the bargaining unit.

 

In this regard, the County has won the agreement of all of its employee unions except the

Guild, the Juvenile Detention Guild, and the Uniformed Command Association

(representing the 13 corrections Captains).(fn:33) The County argues compellingly that it is

not practicable to administer such a large workforce without a reasonable backbone of

procedural uniformity. The Guild argues that it has not had the time to address the

proposed change to the 2005 Guidelines; but the proposal has been at large since 2004.

__________________________

            (footnote 33) Deputies have separate regulations under an independently elected Sheriff.

 

            The Guild offers four specific objections to the Guidelines: First, the Guidelines

proclaim on their first page, in very large type, that the "County retains the right to

modify the policies and procedures in these guidelines from time to time with or without

notice." I agree with the Guild that the County's proposed language for this CBA could

lend itself to a construction waiving the Guild's right to bargain over any sort of changes

in working conditions that might result from changes in the Guidelines. That concern is

easily remedied by the addition of the expression, "...as they were in effect on March 16,

2009" (the first day of the interest arbitration hearing). Second, the Guild objects to the

Guidelines' treatment of promotions; but the County's Post-hearing Brief (at 103) offers

to except the promotions portion of the Guidelines. Third, the Guild objects to the

Guidelines' failure to specify that the EAP is confidential. The County replies that EAPs

are necessarily confidential, but it does not explain why the new Guidelines strike out

"confidential" in Section 13.5: "The Employee Assistance Program (EAP) is a free,

confidential service to all employees and their families." Perhaps it is intended as

elimination of surplusage, but since the County does not explain it and I do not

understand it clearly, I will again specifically except that change from the prior version of

the Guidelines.  Finally, the Guild takes issue in general terms with the performance

appraisals section of the Guidelines; but the County points out that the Management

Rights section of the CBA; at Article 3, B, reserves to management the evaluative

function. I therefore award the following language:

 

            Unless specifically negotiated otherwise or contradicted in a specific provision of this

            Agreement, the 2005 King County Personnel Guidelines in effect on March 16, 2009

            shall cover all employees and classifications in this bargaining unit except with respect

            to promotional procedures and with respect to the Guidelines deletion of the word

            "confidential" in section 13.5 describing the Employee Assistance Program

 

                                                HOLIDAY LEAVE BANK

 

            The parties' current contract and practice allow an employee to keep a holiday hours

bank separate from his or her vacation bank. The holiday bank has no accrual maximum;

and the developed practice allows employees to actually take a day off on a holiday by

charging that day to vacation time and still bank the holiday hours in the unlimited holiday

leave bank. The County's unfunded liability in the holiday bank is substantial, amounting

to over 49,000 hours with a current value of over $1.3M. 130 members of the bargaining

unit have over 100 hours in their holiday bank, 41 have over 300 hours, 19 have over 500

hours, and two employees have over 900 hours (about 22 weeks) of banked holiday time.

In the three pay periods just before the interest arbitration hearing, the County paid out over

$71,000 in holiday bank cashouts. The County proposes to eliminate the holiday banks by

adding this language to Article 5, Holidays:

 

            Section 2. Holiday Pay. All employees shall take holidays on the day of observance

            unless their work schedule requires otherwise, in which event they shall either be paid

            for the holiday or, if mutually agreed to by the employee and management, may be

            scheduled the same as a vacation day. All leave accrued under this section will be

            administered through the vacation plan (including maximum accruals provided in

            Article 6, Section 1NB).

 

            Section 2b. Existing Holiday Banks. Effective December 31, 200[9] employees will

            have their holiday bank hours converted to vacation hours. Any holiday bank hours

            grandfathered for future use for that employee (although the employee shall not accrue

            any additional hours). Each subsequent December 31 st any remaining holiday bank

            hours shall again be converted to vacation hours and any remaining hours (in excess

            of the vacation accrual maximum) shall remain grandfathered for future use. This

            provision shall continue until all holiday bank hours have been converted to vacation.

            PERS I employees must use all their accrued holiday time prior to retirement.

Section 4. Holiday Time Accrual.  An employee's paycheck will reflect the monthly

accrual of holiday time:

NB: The referenced cap on vacation hours accrual is 480 hours 

            The Guild opposes the elimination of the holiday banks. The Guild argues that

the accumulated holiday bank is important for overseas family visits, to augment pay

while on workers comp leave, and to cover FMLA leave (thus extending the time before

an employee could be separated from service). Moreover, holiday leave may be cashed

out, while vacation leave may not. Finally, the Guild argues that there are too few

vacation slots already and that that shortage will be seriously exacerbated if employees

are discouraged from banking holiday leave.

 

            None of the comparable Counties offer any similar benefit to Corrections staff.

Pierce County essentially requires holiday time to be taken within the calendar year

except for 48 hours that may be taken in cash. Snohomish County allows an 80 hour

carryover but also allows the County to buy back 80 hours at the end of November.

Spokane County, essentially, allows no carryover but lets Sergeants cash out up to five

days per year. Multnomah County, essentially, requires holidays to be used or cashed out

within the fiscal year. Santa Clara County converts holiday credit to vacation leave if the

holiday falls on a day off. And Riverside County apparently caps accrued holiday leave at

80 hours. The County's own Deputy Sheriffs no longer have holiday banks.

 

            There is no sound basis for the continuation of the holiday leave bank in its

current uncontrolled form. The holiday leave bank is being used to subvert the bargained

cap on vacation leave; and it would be irresponsible of the County to allow this unfunded

liability to continue to expand year after year. The question is what to do with the

program and its accumulated leave balances. The Guild-in hopes of preserving the

program as it is-offered no suggestions for preservation of the program in a modified

form; and the County's proposed liquidation of the program is a bit draconian. Therefore,

I will establish a separate holiday hours bank with a cap of 40 hours. For employees with

40 or fewer holiday hours now in their bank, time over 40 hours at the end of the calendar

year shall be paid in cash. For employees with more than 40 hours now in their bank, no

additional time may be banked until the bank is below 40 hours, and at least ten percent

of the excess over 40 hours on January I must be used that year or that amount will be

paid in cash at the end of the calendar year. That approach leaves some cushion for the

employees with the same characteristics as the current holiday bank hours, but it

eliminates the uncontrolled growth of the County's unfunded liability. This is the

language:

 

            Section 2b. A maximum of 40 hours may be carried over from one calendar year to

            the next in an employee's holiday leave bank. For employees who have less than 40

            hours in their bank at the beginning of a calendar year (or on the date of the 2009

            interest arbitration award), any hours in excess of 40 at the end of that calendar year

            shall be paid in cash.  For employees who have 40 hours or more in their bank at the

            beginning of a calendar year (or on the date of the 2009 interest arbitration award),

            those hours in excess of40 on that date must be reduced by 10% during that calendar

            year or the remainder of that 10% shall be paid in cash at the end of that calendar

            year.

                                                            SICK LEAVE 

            Corrections work is hazardous. Corrections Officers and Sergeants are required to

deal with combative prisoners as a regular part of the job, usually with no weapons beyond

a stun gun and pepper spray. The existing CBA includes a "Special Sick Leave" provision

which adds sick leave specifically for the purpose of augmenting workers comp payments

for on-the-job injuries. The County proposes the following adjustments to that language:

 

            Special Sick Leave. All newly hired Corrections Officers shall be provided with thirty

            (30) days special sick leave, which shall be used only to supplement the employee's

            industrial insurance benefit should the employee be injured on the job during his or

            her first calendar year on the job. The special sick leave shall not be used until three

            (3) days of regular sick leave have been used for each instance of on the job injury.

            After the first three (3) days of leave, the employee must use special sick leave prior to

            using regular sick leave while on an FMLA qualified industrial injury leave. During

            the second After completion of the first year of employment, all Corrections Officers

            shall be provided with eligible for twenty (20) days special sick leave which shall only

            be utilized in the circumstances as herein described. Special sick leave is noncumulative,

            but is renewable annually for any subsequent injury. Except for an

            employee in the first calendar year of employment, as described above, no employee

            shall be eligible for more than twenty (20) days of special sick leave per injury or per

            year.

 

                        No comparable county provides such a benefit except Spokane County which

grants up to 360 hours over a five year period. But the County's own Deputies have a

similar benefit, providing 23 days of special leave renewable annually. (In fact, this

benefit dates back to before the Deputy Sheriffs and Corrections Officers split into two

bargaining units.)

 

            The County argues that the current language may encourage employees to stay off

work longer than necessary. But the County stipulates that it does not justify this

proposal as a response to sick leave abuse, and there is no analysis of sick leave usage in

the record to support the suggestion that the current language leads to longer down time.(fn:34)

I cannot award the language proposed by the County.

___________________________

            (footnote 34) Moreover, it is not at all clear to me that the proposed language on its face says

quite what the County wants to say. As written, the proposed language seems to be a sure

invitation to grievance arbitration.

 

                                                SPECIAL ASSIGNMENTS

 

            Most assignments are subject to seniority bid but some..-"Special

Assignments"-as not.  The County would make Court Detail a special assignment

beginning with the 2010 annual shift rotation. At that same time, it would add to the list

of special assignments for Sergeants "Administration, Court Detail, Maintenance and

Supply, or [RJC Intake, Transfer & Release]." (While the Corrections Officer special

assignment language makes these assignments "at the discretion of management with

seniority being but one factor," the special assignment of Sergeants is "at management's

complete discretion.")

 

            The nub of the County's argument in favor of this proposal comes down to this:

Court Detail is sweet work in this unit (e.g., 9:00 to 5:00 with weekends of£), and senior

Corrections Officers generally stay in that detail for decades until retirement. The Guild

replies that Court Detail was unilaterally assigned by management up until about 15 years

ago until complaints about "good old boy" choices led the parties to make it a seniority

bid. Beyond a reference to cross-training in the abstract, the County does not offer any

concrete examples of improvements if the various Sergeants were cross trained; and the

Guild notes that there is little cross-training value in spreading these assignments,

because experience in Court Detail has little to teach a Corrections Officer about running

a housing unit or the reverse. In short, the record does not show an adequate reason for

departing from seniority choice for Court Detail or for the listed Sergeant assignments,

and I cannot award the County's proposed language.

 

            The Guild offers its own proposal here, aimed at clarifying the existing contract

language. The County does not raise any objections to the proposed clarification; and I

award it.

 

                                                                        AWARD

The new contract shall include the following contract language:

 

                                                            COMPENSATION

 

ARTICLE 8: WAGE RATES.

 

Section 1.

 

            a. 2007 Wage Rates. Corrections Officers and Sergeants. Effective January

1, 2007, the base wage rates of bargaining unit members in effect December 31, 2006

shall be increased by ninety-five percent (95%) of the CPI - W for All Cities Index

(September 2006 through September 2007).  In no event shall such increase be less

than three percent (3%) nor greater-than -six percent (6%).  In addition, effective

January 1,2007, an additional step (48 months) for Serge,ants shall. be added to the pay

scale at 3% above the 36 month rate.

 

            b. 2008 Wage Rates. Corrections officers and Sergeants. Effective January

1, 2008, the base wage rates of bargaining unit members in effect December 31, 2007,

shall be increased by ninety-five percent (95%) of the CPI - W for All Cities Index

(September 2006 through September 2007). In no event shall such increase be less

than three percent (3%) nor greater than six percent (6%). In addition, effective

January 1,2008, an additional step (60 months) for Sergeants shall be added to the pay

scale at 3% above the 48 month rate.

 

            c. 2009 Wage Rates. Corrections Officers and Sergeants. Effective January

1, 2008, the base wage rates of bargaining unit members in effect December 31, 2008,

shall be increased by ninety-five percent (95%) of the CPI -W for All Cities Index

(September 2007 through September 2008). In no event shall such increase be less

than three percent (3%) nor greater than six percent (6%).

 

            d. 2010 Wage Rates. Corrections Officers and Sergeants. Effective January

1, 2008, the base wage rates of bargaining unit members in effect December 31, 2009,

shall be increased by ninety-five percent (95%) of the CPI -W for All Cities Index

(September 2008 through September 2009). In no event shall such increase be less

than three percent (3%) nor greater than six percent (6%).

 

            e. Corrections Officer Entry and 12 Month Step. Effective June 15, 2009,

the entry step and 12 month step for Corrections Officer shall be increased by eight

percent (8%) and four percent (4%) respectively.

 

            Section 2: Retroactivity of the 2009 Interest Arbitration Award. The award

shall apply to all Corrections Officers and Sergeants currently employed by the County.

With respect to individuals who are not now so employed but who were so employed

between January 1, 2007 and June 15, 2009, the award shall apply to those individuals

only if they have provided the County with a freshly confirmed current address as

follows:

 

The County shall attempt to establish freshly confirmed current addresses by sending

out notices of the award by July 15, 2009 to whatever addresses it has for past

employees and giving those individuals 90 days to inform the County of their current

address. (The Guild may also take steps to encourage former employees to file a

current address with the County.) Any former employee for whom the County has no

freshly confirmed current address by the end of that 90 day period is not within the

scope of the 2009 interest arbitration award.

 

            The Longevity Incentive provisions of the prior collective bargaining agreement

shall continue into the new agreement unchanged.

 

                                                MANDATORY OVERTIME

Effective January 1, 2010 any employee required to work mandatory overtime within

ten (10) days of previously working mandatory overtime shall be paid double time for

such mandatory overtime hours worked within ten (l0) days of previous mandatory

overtime.

                                                   DISCIPLINE

Article 3,C, Discipline of the prior collective bargaining agreement shall continue

into the new agreement unchanged.

 

                                           VIDEO RECORDING

Video Cameras: to enhance the utility of video cameras, the Department may add a

recording capability to video cameras in all facilities. Video recordings shall only be

reviewed in connection with a specific concern or a specific incident. An employee

who is the subject of an investigation shall be allowed to privately view the video with

a Guild representative prior to his/her interview concerning the alleged misconduct.

                                      PERSONNEL GUIDELINES

Unless specifically negotiated otherwise or contradicted in a specific provision of this

Agreement, the 2005 King County Personnel Guidelines in effect on March 16, 2009

shall cover all employees and classifications in this bargaining unit except with respect

to promotional procedures and with respect to the Guidelines deletion of the word

"confidential" in section 13.5 describing the Employee Assistance Program

 

                                    HOLIDAY LEAVE BANK

 

Section 2b. A maximum of 40 hours may be carried over from one calendar year to

the next in an employee's holiday leave bank. For employees who have less than 40

hours in their bank at the beginning of a calendar year (or on the date of the 2009

interest arbitration award), any hours in excess of 40 at the end of that calendar year

shall be paid in cash. For employees who have 40 hours or more in their bank at the

beginning of a calendar year (or on the date of the 2009 interest arbitration award),

those hours in excess of40 on that date must be reduced by 10% during that calendar

year or the remainder of that 10% shall be paid in cash at the end of that calendar

year.

                        SICK LEAVE and SPECIAL ASSIGNMENTS

 

The language of these provisions of the prior collective bargaining agreement

shall continue into the new agreement unchanged.

 

 

                                                                        Respectfully submitted

 

 

 

                                                                        Howell L. Lankford

                                                                        Arbitrator