THE MATTER OF THE INTEREST ) ARBITRATOR'S
)
ARBITRATION BETWEEN ) SUPPLEMENTAL INTEREST
)
THE STATE OF WASHINGTON ) AWARD
)
"THE STATE" or "THE EMPLOYER" )
)
AND )
)
SEIU LOCAL 775 NW )
)
"LOCAL 775" OR "THE UNION" )
HEARING: September 10, 2009
Federal Way, Washington
September 11, 2009
Tumwater, Washington
BRIEFS: Employer's received: September 22, 2009
Union's received: September 22, 2009
HEARING CLOSED: September 22, 2009
ARBITRATOR: Timothy D.W. Williams
2700 Fourth Ave., Suite 305
Seattle, WA 98121
REPRESENTING THE EMPLOYER:
Stewart Johnston, Sr. Assistant Attorney General
Alicia Young, Assistant Attorney General
Diane Lutz, Labor Negotiator
Dan Murphy, Director Strategic Planning DSHS
Grace Kiboneka, DSHS/ADSA Labor Relations
Rick Hall, E. D. Home Care Quality Authority
Paige Lemcke, Paralegal
REPRESENTING THE UNION:
Judith Krebs, General Counsel
David Rolf, President
Tim Palmer, C B and Employer Relations Manager
Nora Kelley, Director Member Programs
APPEARING AS WITNESSES FOR THE EMPLOYER:
Candace Espeseth, Assistant Director OFM
Judy Fitzgerald, Finance Director DSHS
Franida Bethire Wilson-Maudsley, Office Chief -
Payment System
Rina Wikandari, Budget Analyst DSHS
Dan Murphy, Director Strategic Planning DSHS
Diane Lutz, Labor Negotiator OFM
APPEARING AS WITNESSES FOR THE UNION:
David Rolf, President
Charissa Raynor, Executive Director SEIU
Healthcare NW Training Partnership
Tim Palmer, C B and Employer Relations Manager
Steven B. Abrecht, SEIU National Director of
Benefits
EXHIBITS
Union
83. 50% Eligibility for Training Certificate
84. 60% IP Eligibility for Training Certificate
85. 80% IP Eligibility for Training Certificate
86. DOL Training Grant Application
87. Costs of Arbitration Award
88. Carry - Forward and Maintenance Levels
89 DSHS Long Term Care Recommendation Summary
Employer
B-1. Arbitrator Williams' 2008 Interest Arbitration Decision OFM,
State of Washington v. SEIU 775
B-2. Tentative Agreements
B-3. RCW 74.39A.270
B-4. RCW 74.39A.300
B-5. State's Last Proposal for Article 9 - Compensation and
Appendix A
B-6. Union's Last Proposal for Article 9 - Compensation and
Appendix A
B-7. Union's and State's Last Proposals for Article 22 -
Retirement Benefits
B-S. DSHS Organization Chart, ADSA Organization Chart
B-9. 20009-2011 DSHS Operating Budget Excerpt: Appropriations for
DSHS Long Term Care Services
B-10. Long Term Care Workers Training Bill
B-11. June 2009 Washington State Economic and Revenue Forecast
B-12. June lS, 2009 Memo from Governor Gregoire - Additional
Budget Savings
B-13. June lS, 2009 Memo from Arun Raha - Economic and Revenue
Forecast Council
B-14. July 1, 2009 Memo from Victor Moore - Implementation
Instructions for GFS Budget Savings
B-15. July 13, 2009 Economic & Revenue Update - Washington
Economic Forecast Counsel
B-16. August 11, 2009 Economic & Revenue Update - Washington
Economic Forecast Counsel
B-17. 2009-2011 Budget Overview - Operating, Transportation, and
Capital Budgets
B-18. General Fund - State Cash Forecasts since February 200S
B-19. Homecare Model BN 0911 Union vs. Employer Comparison
B-20. Homecare Model BN 0911 Employer's Proposal
B-21. Homecare Model BN 0911 Union's Proposal
B-22. Certification Differential Cost Chart
B-23. Certification Pay Differential Methodology
B-24. Summary 2009-2011 Aging Budget
B-25. WSR 09-14-046
BACKGROUND
SEIU Local 775 Healthcare NW represents individual providers
hired by Medicaid consumers to provide in-home personal care.
The Department of Social and Health Services administers Medicaid
in the State of Washington. The Parties were bound by a
Collective Bargaining Agreement which expired on June 30, 2009.
On October 1, 200S this Arbitrator issued an interest award
for the two Parties as a final step towards implementing a
successor agreement to the 2007-2009 Collective Bargaining
Agreement (S B-1). The Arbitrator's interest award was never
implemented by the State. The Union provides the following
explanation for the lack of implementation on pg. 1 of its
closing brief.
This 2009 interest arbitration between OFM - State of
Washington and SEIU Heal thcare 775NW stems from the
Governor's failure to include this Arbitrator's October
1, 2008 interest arbitration Award for the 2009-2011
collective bargaining agreement in her balanced budget
proposal to the legislature and the legislature's
decision not to fund it on its own initiative.
Consequently, nothing ordered in the 2008 Award
received legislative funding.
The Union further provides insight into the steps required
by State Statute in the event that an interest award is not
implemented.
When an interest arbitration award is not funded by the
legislature, RCW 74.39A.300(3) directs the parties'
next steps. The statutory provision says "If the
legislature rejects or fails to act on the submission,
any such agreement will be reopened solely for the
purpose of renegotiating the funds necessary to
implement the agreement." Thus the statute compels us
to begin with the Arbitrator's 2008 Award.
Following the failure to implement the Arbitrator's 2008
award, the Parties again undertook negotiations in an effort to
reach agreement on a CBA to replace the 2007/09 agreement.
Presently, while the Parties have reached a number of tentative
agreements (S B-2), the Parties have come to an impasse in
negotiations on several provisions that will become a substitute
for Arbitrator's original decision. RCW 41.56.450 provides that
interest arbitration is to be used to resolve an impasse; this
requirement applying as much to the substitute agreement as to
the original. The issues to be submitted to the arbitrator for
determination "shall be limited to the issues certified by the
executive director." By letter dated August 31, 2009 Executive
Director of the Public Employment Relations Commission (PERC),
Cathleen Callahan, certified the following issues at impasse and
thus subject to interest arbitration:
Article 9.2 Wages: Certification differential; Appendix A
Article 10.2 Health care contribution for 2011
Article 21 Hours of work
Article 22 Retirement Benefits
Prior to the arbitration hearing, the Parties were able to
reach tentative agreement regarding Article 10.2. On September
9, 2009 Article 21.1 was removed from interest arbitration
pending a resolution of a charge by the State that the Union is
advancing a nonmandatory subject of bargaining. The only issues
before the Arbitrator, therefore, are Article 9.2 (and Appendix
A) and Article 22.
In accordance with WAC 391-55-205, each Party had the right
to name one partisan Arbitrator to serve as a member of the
arbitration panel. The statute provides that "The use of
partisan arbitrators shall be deemed waived if neither Party has
notified the executive director of its appointee within fourteen
days following the issuance of a certification of issues for
interest arbitration, and the Parties' principal representatives
shall then select the neutral chairperson." Both Parties waived
the use of partisan arbitrators and Arbitrator Timothy Williams
was selected as the neutral chairperson. For the purposes of
this document, the terms "neutral chairperson" and "interest
arbitrator" or "arbitrator" shall be interchangeable.
WAC 391-55-220 provides that parties to interest arbitration
must provide the Arbitrator and each other with written proposals
on all issues within fourteen (14) days of the hearing. The
Parties and the Arbitrator mutually agreed to waive that
requirement and set the date of submissions for end of business
on September 9, 2009. Both Parties timely submitted their
proposals on September 9, 2009.
The hearing took place in Federal Way, Washington on
September 10, 2009 and in Tumwater, Washington on September II,
2009. At the hearing, both Parties had full opportunity to make
opening statements, examine and cross-examine sworn witnesses,
present documentary evidence, and make arguments in support of
their positions.
RCW 41.56.450 provides that "a recording of the proceedings
shall be taken." In compliance with the statute, an official
transcript of the proceedings was taken, and a copy was provided
to the Arbitrator. At the close of the hearing, the Parties were
given the opportunity to file written arguments. The Parties
accepted and their briefs were timely received by the Arbitrator
on September 22, 2009. In accordance with WAC 391-55-240, the
Arbitrator declared the hearing closed on September 22, 2009.
The Arbitrator's opinion and awards are submitted on an
issue-by-issue basis. For each issue I will begin by presenting
the Parties' respective positions, outline the Parties' arguments
in support of their positions, provide the analysis for the
Arbitrator's opinion and conclude with the award.
The Arbitrator's supplemental interest award is based on a
careful analysis of the evidence and argument presented during
the immediate hearing, the entire record from the 2008 hearing,
the arguments found in the written briefs, and with full
consideration of the following factors, found in RCW 41.56.465:
(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) 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. For those employees
listed in RCW 41.56.030(7) (a) who are employed by
the governing body of a city or town with a
population of less than fifteen thousand, or a
county with a population of less than seventy
thousand, consideration must also be given to
regional differences in the cost of living
(2) For employees listed in RCW 41.26.030(7) (a) through (d),
the panel shall also consider a comparison of 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.
POSITIONS, ARGUMENTS, OPINION AND AWARD
ISSUE I: ARTICLE 9.2
CERTIFICATION DIFFERENTIAL APPENDIX A
State's Proposal: 9.1 Wages
Effective July 1, 2007 a new wage scale is
established based on cumulative career
experience. Effective July 1, 2007, current
home care workers will be placed on a step
commensurate with their IP hours of work
retroactively calculated to July 1, 2005.
Bargaining unit home care workers will be
paid according to the wage scale found in
Appendix A. During the life of this
Agreement wages shall be adjusted upward for
each home care worker based upon accumulation
of hours. All home care workers shall be
paid strictly on an hourly basis. Except as
modified by this Agreement, all home care
workers shall be paid strictly according to
the wage scale. Any non-hourly payment
arrangements, or arrangements to pay any home
care worker according to any other rate than
the rates contained in Appendix A, are hereby
void.
9.2 Mentor, Preceptor, and Trainer Pay
A home care worker who is assigned by the
Employer as a mentor, preceptor, or trainer
of other home care workers or prospective
home care workers shall be paid an additional
one dollar ($1.00) per hour differential in
addition to his/her regular hourly wage rate,
and in addition to any other differentials or
adjustments, for each hour that he or she
works as a mentor, preceptor, or trainer.
APPENDIX A
WAGE SCALE
| July 1, 2009 - June 30, 2011 |
|
| Cumulative Career Hours |
Wage |
| 0-2000 |
$10.03 |
| 2001-4000 |
$10.17 |
| 4001-6000 |
$10.33 |
| 6001-8000 |
$10.46 |
| 8001-10000 |
$10.61 |
| 10001-12000 |
$10.76 |
| 12001-14000 |
$10.91 |
| 14001 plus hours |
$11.07 |
Note: Wage shall be adjusted upwards by $1.00/hour for individual
providers who perform duties as mentors, preceptors, or train~rs
as assigned by the Employer, its contractors or subcontractors.
Union's Proposal: 9.1 Wages
Effective July 1, 2009, current employees
will be placed on a step commensurate with
their IP hours of work retroactively
calculated to July 1, 2005. Bargaining unit
employees will be paid according to the wage
scale found in Appendix A. During the life
of this Agreement wages shall be adjusted
upward for each employee based upon
accumulation of hours. All employees shall
be paid strictly on an hourly basis. Except
as modified by this Agreement, all employees
shall be paid strictly according to the wage
scale. Any non-hourly payment arrangements,
or arrangements to pay any employee according
to any other rate than the rates contained in
Appendix A, are hereby void.
9.2 Certification Differential and Mentor,
Preceptor, and Trainer Pay
Effective April 1, 2011 employees who hold
and submit a valid "Home Care Aide"
certification or Certified Nursing Assistant
license (or equivalent or greater medical
license), shall be paid an additional fifty
cents ($0.50) per hour differential' in
addition to his/her regular hourly wage rate.
An employee who is assigned by the Employer
as a mentor, preceptor, or trainer of other
employees or prospective employees shall be
paid an additional one dollar ($1.00) per
hour differential in addition to his/her
regular hourly wage rate, and in addition to
any other differentials or adjustments, for
each hour that he or she works as a mentor,
preceptor, or trainer.
APPENDIX A
WAGE SCALE
| July 1, 2009 - June 30, 2011 |
|
| Cumulative Career Hours |
Wage |
| 0-2000 |
$10.03 |
| 2001-4000 |
$10.17 |
| 4001-6000 |
$10.33 |
| 6001-8000 |
$10.46 |
| 8001-10000 |
$10.61 |
| 10001-12000 |
$10.76 |
| 12001-14000 |
$10.91 |
| 14001 plus hours |
$11.07 |
Note: Wage shall be adjusted upwards by $1.00/hour for individual
providers who perform duties as mentors, preceptors, or trainers
as assigned by the Employer, its contractors or subcontractors.
Likewise, effective April 1, 2011, wages shall be adjusted
upwards by fifty cents ($0.50) per hour for individual providers
who hold and submit a valid "Home Care Aide" certification or
Certified Nursing Assistant license (or equivalent or greater
medical license).
State's Position:
The State's case largely consists of an inability to pay
argument. The State's position is that it is unable to grant the
Union's proposal for differential pay considering its present
economic situation.
When this Arbitrator issued his opinion and award in the
2008 Interest Arbitration between the Parties on September 30,
2008, he recognized that the State was facing a financial
shortfall and that economic forecasts did not bode well for state
governments. Since that time, the State's economic outlook
changed from being very bad to being the worst in history. The
Governor's proposed budget accordingly excluded all compensation
and benefit increases for individual providers.
The budged adopted by Legislature in April 25, 2009 included
no additional funding for individual providers other than a 3%
health care contribution. The budget also reduced funds for
long-term care with the intended result of cutting by an average
of 3.8% the number of hours of personal care received by Medicaid
consumers. The budget does not include any funds for a
certification differential.
Also, when this Arbitrator issued his opinion and award in
the 2008 Interest Arbitration between the Parties on September
30, 2008, he found that the certification differential would
serve as a financial incentive to individual providers to
participate in a training program. Since that time, Initiative
1029 has made a training program mandatory for all individual
providers beginning employment after January 1, 2011. One effect
of this mandate is that it nullifies the function of the pay
differential as incentive to individual providers. The other
effect is that certification pay would translate into an across-
the-board wage increase, which the State is not in a position to
afford. The direct costs are estimated to be $1 million for
2011, $11 million for 2012 and over $20 million for 2013. These
sums are prohibitive.
The State argues against the Union's position that this
Arbi trator' s 2008 award had the effect of "transferring" money
allocated to fund consumer hours of care to pay for a
certification differential. According to the testimony of State
witnesses, including Dan Murphy, "there is no money to transfer."
The State emphasizes that ADSA clients are experiencing a drastic
reduction In services due to the State's current economic
situation. The most recent Economic Revenue Forecast shows that
revenues continue to decline faster than projected. The Union's
proposal for differential certification pay comes at a
particularly bad time for the State and cannot responsibly be
granted.
Union's Position:
The Union's position is that the State's inability to pay
argument is irrelevant In this case because there is already a
legislative appropriation available in excess of what the Union
proposes.
The Union begins by citing RCW74.39A.300(3) ~hich direct the
Parties in the event that an interest arbitration award is not
funded by the legislature. The statute provides that the
agreement (the Arbitrator's 2008 award) is to be reopened for the
purpose of renegotiating the funds necessary to implement it.
Presently, the Union presents its case that the Arbitrator should
decide that allocated funds are already sufficient and no further
legislative action is required. The Union's certification
differential proposal is substantially less expensive than the
Arbitrator's 2008 award.
When this Arbitrator issued his opinion and award in the
2008 Interest Arbitration between the Parties on September 30,
2008, he granted the Employer's proposal to eliminate Article
22.1 and added the savings thus realized to the hourly wage
proposal. Because the 2008 Award was not adopted by the
legislature, the State continues to spend funds under Article
22.1. However, once the new contract goes into effect the
savings from Article 22.1 will disappear unless spent on the 2009
award. These savings were found by the Arbitrator to be $10
million and can be used to fund the Union's current proposal.
The State failed to present any evidence that the 2009-2011 CBA
funding is any less than the 2007-2009 CBA.
The Union believes that the savings from Article 22.1 are
actually in excess of $10 million, and could easily be about
$17.1 million. In addition to the $10 million found by the
Arbitrator, there is a carryover of about $2 million in "Jenkins
money." Other factors have a significant upward effect on the
carryover amount. These include caseload growth, inflationary
factors, and the federal government's enhanced Medicaid match.
Neither the money allocated by the legislature for health care
for individual providers nor the money allocated for training can
affect the Union's Article 22.1 savings because it is new money,
not a product of collective bargaining. The Union asks the
Arbi trator to find that the actual total amount of allocated
funds available from the legislature's appropriation for the
2009-2011 CBA is $17.1 million.
The Arbitrator's 2008 award granted a $0.50 differential for
training certification. The case for a certification
differential is now even more compelling than it was in 2008
because of the enhanced federal Medicaid match currently
available, but likely to be eliminated after 2011. Another
compelling reason to grant the differential is that the SEIU
Heal thcare Northwest Training Partnership would likely receive
funds from the American Recovery Reinvestment Act if it is able
to show some wage progression resulting from increased training.
The Union urges that these opportunities be taken advantage of.
Lastly, the Union argues that the State's projected
administrative costs associated with the certification
differential are artificially high. The Union believes these
costs are exorbitant by any measure and not supported by sound
reasoning.
For all of the reasons presented above, the Union requests
that the Arbitrator grant its proposal.
Analysis:
In the 2008 award, this Arbitrator took the position that in
the current tough economic times the State's ability to pay
trumps all of the other statutory factors that the Arbitrator is
required to use in making his award. The State's basic position
with regard to this supplemental decision is that economic
conditions have actually become more severe and thus no element
of the Arbitrator's award should impose an additional financial
cost on the Department.
In urging the Arbitrator to award its proposal, the Union
draws a distinction between what it calls allocated funds and
conditional funds. Allocated funds are those that have already
been made available by the legislature. Condi tional funds are
those that the Department would have to seek approval from the
legislature. The Union contends that there are sufficient
allocated funds available to DSHS by which it could fully pay for
the certification premium.
Ultimately the Arbitrator finds the presentation of the
State more persuasive than that of the Union. In making this
determination, the Arbitrator is mindful of the distinction
between what he calls paper and pencil money and spendable money.
Paper and pencil money is money that shows up on paper and that
can be manipulated by striking it in one column and adding it to
another column. On a personal level, paper and pencil money is
that found in a stock portfolio where it can be worth a great
deal on one day and a great deal less on the next. Spendable
money is money in the bank on which one can write a check.
While the Arbitrator is not an economist, he does believe it
accurate to state that in a stable economy paper and pencil money
can be roughly translated into spendable money. For example, a
stock portfolio can show gradual changes, hopefully upward, from
month to month but the overall value remains reasonably constant.
Similarly when DSHS receives a budget approved by the state
legislature, that budget (paper and Pencil money) carries with it
the assurance that it is a good indicator of spendable money.
Clearly, a stable economy is not the current situation. The
State's evidence persuasively establishes that since the original
budget was set, calling for substantial cuts throughout DSHS's
programs, additional cuts are being required because in this down
economy spendable money has not equaled paper and pencil money.
Thus, when the Union takes a position in its brief that
there are fund balances (p 3) and "money for differentials is
available" (p 4), the Arbitrator finds that these statement are
true in the sense of paper money. On the other hand the
Arbitrator finds these statements completely untrue in the
context of spendable money.
In its brief, the State notes what it calls the drastic
reduction of services to ADSA clients (p 9) because of the loss
of spendable money. The Arbi tra tor's review of the evidence
Interest Arbitration between State of Washington and SEIU Local 775 pg. 16
leads him to conclude that the State's Position is well
supported.
The Arbitrator further notes that the requirements of a CBA
are contractual and not subject to unilateral change. Thus once
the State agrees to a CBA with this bargaining unit, it is
obligated to pay the terms of that agreement. If the primary
source of money diminishes, that does not allow the Employer to
reduce the wages of the Union members. Rather, in order to find
the money to comply with the terms of the CBA, the Employer will
be required to further reduce services to ADSA clients. The
Arbitrator is simply unwilling to make an award at this time that
he believes will result in the additional reductions of services.
Unfortunately that is his conclusion with regard to the
certification pay premium that is requested by the Union.
One final note, the Arbitrator is also partially persuaded
on this issue by State arguments related to the adoption by
voters of a proposition that requires mandatory certification.
In the Arbitrator's view, the original certification pay premium
was to serve as the "carrot" to induce employees to take the
training necessary to receive certification. The Arbitrator is
convinced that a certified workforce deserves higher pay not as
an inducement but based on the fact that greater skills and
ability justify the higher level of compensation. This matter,
however, needs to be addressed at the bargaining table.
Award:
9.1 Wages
Effective July 1, 2009, current employees will be placed on a
step commensurate with their IP hours of work retroactively
calculated to July 1, 2005. Bargaining unit home care workers
will be paid according to the wage scale found in Appendix A.
During the life of this Agreement wages shall be adjusted
upward for each home care worker based upon accumulation of
hours. All home care workers shall be paid strictly on an
hourly basis. Except as modified by this Agreement, all home
care workers shall be paid strictly according to the wage
scale. Any non-hourly payment arrangements, or arrangements
to pay any home care worker according to any other rate than
the rates contained in Appendix A, are hereby void.
9.2 Mentor, Preceptor, and Trainer Pay
A home care worker who is assigned by the Employer as a
mentor, preceptor, or trainer of other home care workers or
prospective home care workers shall be paid an additional
one dollar ($1.00) per hour differential in addition to
his/her regular hourly wage rate, and in addition to any
other differentials or adjustments, for each hour that he or
she works as a mentor, preceptor; or trainer.
APPENDIX A
WAGE SCALE
| July 1, 2009 - June 30, 2011 |
|
| Cumulative Career Hours |
Wage |
| 0-2000 |
$10.03 |
| 2001-4000 |
$10.17 |
| 4001-6000 |
$10.33 |
| 6001-8000 |
$10.46 |
| 8001-10000 |
$10.61 |
| 10001-12000 |
$10.76 |
| 12001-14000 |
$10.91 |
| 14001 plus hours |
$11.07 |
Note: Wage shall be adjusted upwards by $1.00/hour for individual
providers who perform duties as mentors, preceptors, or trainers
as assigned by the Employer, its contractors or subcontractors.
ISSUE II: ARTICLE 22 - RETIREMENT BENEFITS
Union's Proposal: 22.1 Intent
It is the intent of the parties to develop a
new model of retirement benefits which
provides retirement security for home care
workers and which manages risk for the
Employer and union members. Features of this
model shall include secure retirement income
for home care workers, mandatory employer and
voluntary worker contributions, portability,
lifetime retirement benefits, prudent asset
investment management, cost-effectiveness,
joint governance, and effective communication
and education. The parties commit to work
jointly to develop this model.
22.2 Development of a Retirement Benefits
Trust
Prior to the expiration of this Agreement,
the parties shall join a multi-employer TaftHartley
Trust for the purpose of providing
retirement benefits to unionized home care
workers in Washington State. The Employer
agrees to become and remain a participating
member of the Trust.
22.3 Research and Staff Support
The Union shall, through its national
benefits staff, arrange for research and
staff support to the parties to support the
joint effort of the parties to develop this
new model of retirement benefits.
State's Proposal: Delete Article 22 - Retirement Benefits.
Union's Position:
In the past, this Arbitrator has taken the position that
this bargaining unit should have a retirement plan. The Union's
position is that the Employer is attempting to relitigate a well-
Interest Arbitration between State of Washington and SEIU Local 775 pg. 19
settled decision by the Arbitrator by moving to eliminate Article
22. The Union asks that the Arbitrator reaffirm what he found in
previous awards - that a retirement plan with mandatory Employer
participation is a good idea.
The Union argues that its retirement benefits proposal
carries no cost at all to the Employer because the new models it
proposes to use do not require time consuming and costly
actuarial calculations. In addition, the Union even offers its
own staff and resources to help the process along. The Union
recognizes that the benefit designs of a Taft-Harley Trust are
beyond the scope of this arbitration, but it continues to propose
that the first step be taken.
State's Position:
The State makes the same inability to pay argument regarding
the Union's proposal for Article 22 as previously summarized for
Article 9.2 and Appendix A.
Due to severe projected shortfalls in the State's revenues,
the budged adopted by Legislature in April 25, 2009 included no
additional funding for individual providers other than a 3%
health care contribution and reduced funds for long-term care.
The budget does not include any funds for the creation of an
administrative system to support a retirement program.
When this Arbitrator issued his opinion and award in the
2008 Interest Arbitration between the Parties on September 30,
2008, he found that the Parties are required to explore and
develop the data necessary for establishing a program of
sustainable retirement benefits for individual providers. Since
that time the economy has worsened so drastically, that there is
no longer any reasonable expectation that the State would be able
to fund said retirement benefits in the foreseeable future.
In addition, there are too many unanswered questions with
respect to the Union's proposal that are not currently resolved.
Nor does the Union argue that retirement benefits for individual
providers are supported by the comparability data. The State
should not be required to join a trust under these circumstances.
Analysis:
This Arbitrator first discussed the issue of retirement
benefits for bargaining unit members in his 2004 decision and
again in the 2008 award. This supplemerital award reaffirms the
Arbitrator's basic belief that the Parties should continue to
work towards developing a retirement benefits program that will
work for this bargaining unit while not becoming an undue
financial hardship to the State.
At page two of its brief, the State takes notice of the fact
that Union members are not state employees for any purpose other
than collective bargaining." The Arbitrator considers this a
legally true fiction created for the purpose of addressing the
unique employment relationship that bargaining unit members face.
Union members are technically the employees of ADSA clients but
their employment is under the direction of the State. Payment
for their services comes from the state augmented by the federal
government. Moreover, it is the state that writes payroll and it
is the state that deducts social security contributions.
Most important, members of the bargaining unit perform
services similar to those performed by traditional state
employees. The difference is that traditional employees perform
the services within a state institution while the bargaining unit
members perform the services within ADSA clients' homes.
The factors that an Arbitrator is required to consider by
RCW 41.56.465 includes:
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.
The simple fact is that state employees in Washington have a
retirement benefit. The Arbitrator finds that this is a factor
that should be ~normally or traditionally taken into consideration
in the determination of wages, hours, and conditions of
employment."
Consistent with this analysis, the Arbitrator awards modified
language on the retirement benefit. He believes that the language
appropriately addresses some of the concerns brought forth by the
State while maintaining at least some small momentum towards the
ul timate goal of implementing a retirement benefit. The Union
addresses the concept of carry-forward in collective bargaining (U
88) . Ultimately the Arbitrator is aware that the value of his
language is primarily found in the concept of carry-forward but
the award does keep the retirement benefit alive in the CBA.
Award:
ARTICLE 22
RETIREMENT BENEFITS
22.1 Intent
It is the intent of the parties to develop a new model of
retirement benefits which provides retirement security for
home care workers and which manages risk for the employer
and union members. The parties commit to work jointly to
develop this model.
22.2 Development of a Retirement Benefits Trust
At such time that the Parties have negotiated an Employer
contribution towards a retirement benefit, the parties shall
join a multi-employer Taft-Hartley Trust for the purpose of
providing retirement benefits to unionized home care workers
in Washington State. The Employer agrees to become and
remain a participating member of the Trust.
22.3 Research and Staff Support
The Union shall, through its national benefits staff,
arrange for research and staff support to the parties to
support the joint effort of the parties to develop this new
model of retirement benefits.
This interest arbitration award is respectfully submitted on this
the 29th day of September, 2009 by,
Timothy D. W. Williams
Arbitrator