INTEREST ARBITRATIONS

Decision Information

Decision Content

IN THE MATTER OF

PIERCE COUNTY

AND

PIERCE COUNTY CAPTAINS ASSOCIATION

 

 

PERC No.:                  22679-1-09-0539

Date Issued:                May 17, 2010

 

INTEREST ARBITRATION OPINION AND AWARD

OF

ARBITRATION PANEL

Alan R. Krebs, Neutral Chair

Denise Greer, Pierce County Partisan Arbitrator

Jody Smith, Captains Association Partisan Arbitrator

 

Appearances:

PIERCE COUNTY                                                                            Otto Klein

PIERCE COUNTY CAPTAINS ASSOCIATION                          Ed Smith

 

 

 

 

 

 

TABLE OF CONTENTS

 

PROCEDURAL MATTERS ........................................................................................................ 2

APPLICABLE STATUTORY PROVISIONS ............................................................................ 2

NATURE OF THE EMPLOYER ................................................................................................. 4

ISSUES ......................................................................................................................................... 5

COMPARABLE EMPLOYERS ................................................................................................   5

COST OF LIVING ....................................................................................................................  15

OTHER CONSIDERATIONS .................................................................................................. 16

            Ability to Pay................................................................................................................... 16

Recruitment and Retention ..............................................................................................17

            Internal Equity................................................................................................................. 18

MANDATORY SUBJECTS FOR BARGAINING ................................................................. 21

WAGES ...................................................................................................................................... 22

UNIFORM AND CLOTHING ALLOWANCE ...................................................................... 29

PAY FOR COMMAND DUTY OFFICERS ........................................................................... 30

CALL OUT PAY ...................................................................................................................... 33

EDUCATIONAL INCENTIVE PAY ...................................................................................... 34

CASH OUT OF HOLIDAY PAY ............................................................................................ 35

LEOFF II DISABILITY LEAVE SUPPLEMENT ................................................................. 37

CORRECTIONAL CAPTAIN DISABILITY LEAVE SUPPLEMENT ............................... 39

EXTENDED SICK LEAVE LOAN BANK ........................................................................... 40

EMPLOYEE RIGHTS TO DUE PROCESS ........................................................................... 42

AWARD OF THE NEUTRAL CHAIR .................................................................................. 43

 

IN THE MATTER OF

PIERCE COUNTY

AND

PIERCE COUNTY CAPTAINS ASSOCIATION

 

OPINION OF THE NEUTRAL CHAIR

 

PROCEDURAL MATTERS

 

In accordance with RCW 41.56.450 an interest arbitration hearing involving certain

uniformed personnel of Pierce County, Washington was held on January 27 and 28,2010, in

Tacoma, Washington. Denise Greer was selected by the Employer and Jody Smith was selected

by the Association to serve on the Arbitration Panel. The Neutral Chair ofthe Arbitration Panel

selected jointly by the parties is Alan R. Krebs. Pierce County was represented by Otto Klein of

the Summit Law Group. Pierce County Captains Association was represented by Captain Ed

Smith.

At the hearing, witnesses testified under oath and the parties presented documentary

evidence. There was no court reporter, and therefore, the Neutral Chair tape recorded the

proceedings. Opening post-hearing briefs were received by the Neutral Chair on March 1, 2010.

Reply briefs were received on March 31, 2010.

 

APPLICABLE STATUTORY PROVISIONS

 

When certain public employers and their uniformed personnel are unable to reach

agreement on new contract terms by means of negotiations and mediation, RCW 41.56.450 calls

for interest arbitration to resolve their dispute. The parties agree that RCW 41.56.450 is

applicable to the bargaining unit of Sheriff s Department captains involved here. Arbitrators are

generally mindful that interest arbitration is an extension of the bargaining process. They

recognize those contract provisions upon which the parties could agree and decide the remaining

issues in a manner which would approximate the result the parties would likely have reached in

good faith negotiations considering the statutory criteria. A party proposing new contract

language has the burden of proving that there should be a change in the status quo.

 

RCW 41.56.465 sets forth certain criteria which must be considered by the Neutral Chair

in deciding the controversy after consultation with the other Panel members:

 

(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, 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.

* * *

 

The statute does not provide guidance as to how much weight should be given to any of these

standards or guidelines, but rather leaves that determination to the reasonable discretion of the

Panel.

 

NATURE OF THE EMPLOYER

 

The bargaining unit involved in this dispute consists of only the five captains employed

by the Pierce County Sheriff s Department. The Department is headed by a sheriff, who is

assisted by an undersheriff. Organizationally, the Department is divided into three bureaus:

Operations, Services, and Corrections, each of which is led by an appointed bureau chief. Three

captains work in the Corrections Bureau: Marvin Spencer, who is the operations captain at the

main jail, Brian Sutherlin, who is the operations captain at the new jail, and Pat Kelly, who is the

program services captain for the jails. Two captains work in law enforcement: Brent Bomkamp

is the CID captain who leads the Department's investigations function and Ed Smith is the

administrative services captain who provides leadership for a number of units, such as training,

court security, IT services, and the property room.

 

The Sheriff s Department has about 744 employees. On the law enforcement side, the

entry level uniformed position is the deputy. The entry level uniformed position on the

corrections side of the Department is the corrections officer. Sergeants serve as first-level

supervisors. Lieutenants are the next higher level of supervision and are just below the captains

in rank. The collective bargaining agreement at issue here is for the successor to the first labor

contract which covered the Department's captains and had a duration from January 1,2006

through December 31, 2008.

 

ISSUES

 

On September 1,2009, the Executive Director of the Public Employment

Relations Commission certified for interest arbitration the following issues which were at

impasse following mediation.

 

1. Mandatory topics for bargaining - Article 3, Section 1

2. Wages - Article 5

3. Uniform and clothing allowances - Article 5

4. Pay for command duty officers - Article 5

5. Call-out pay for CID call-outs - Article 5

6. Educational incentive pay - Article 5

7. Cash-out of holiday pay - Article 9

8. LEOFF II disability leave supplements - Article 10

9. Correctional captain disability leave supplement - Article 10

10. Extended sick leave loan bank - Article 10

11. Employee rights to due process - Article 18

12. Determination of comparable jurisdictions under RCW 41.56.450 et. seq.

 

The parties agree that the new collective bargaining agreement should have a duration of three

years, commencing on January 1,2009.

 

COMPARABLE EMPLOYERS

 

One of the primary "standards or guidelines" set forth in RCW 41.56.465 upon which a

panel must rely in reaching a decision is a "comparison ofthe 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."

 

The County contends that four Washington counties should be utilized as comparable

employers: Clark, Kitsap, Snohomish, and Spokane. It reasons that Clark, Snohomish, and

Spokane Counties each fall within a population band of between 50% and 150% of the

population of Pierce County. While recognizing that Kitsap County has a population which is

too small to fit into this population band, the County nevertheless contends that it should be

considered as a comparator because it is adjacent to Pierce County and is part of the Puget Sound

metropolitan area that includes both Snohomish and Pierce Counties. It further notes that the

assessed valuation per capita in Kitsap County is well within 50% of Pierce County. The County

provided statistical information that the median household income, average home price, and per

capita income of its suggested comparables on average, were reasonably close to those of Pierce

County. The County suggests that if the Panel believes that additional counties should be added

to the list of comparable employers, then the Oregon counties of Multnomah and/or Washington

should be utilized. The County reasons that both of these Oregon counties fall well within 50%

of Pierce County's population. The County urges that California counties not be utilized as

comparable employers because of the significant differences between Washington and California

jurisdictions, differences which have been recognized by other arbitrators.

 

The Association contends that the comparable employers are Snohomish County,

Washington; two Washington cities, Tacoma and Seattle; and seven California counties: Contra

Costa, Fresno, Ventura, Kern, San Joaquin, and Sonoma. (fn:1) The Association asserts that it has

based its proposed comparables on the following factors: population, median home sales prices,

assessed value, state tax burden, consumer price index, government total revenue, similarity of

captain's position, the availability of collective bargaining and interest arbitration, and the

complexity and size of department. The Association urges that Kitsap County should not be

considered because it is too small in both population and total assessed value in comparison with

Pierce County. It argues that Spokane County should not be considered as comparable to Pierce

County because Spokane County is located in Eastern Washington, it has assessed value which is

41 % of Pierce County, its captains do not have civil service protection, and there is no captain

position in its corrections bureau. The Association would exclude Clark County as a comparable

based on a comparison with Pierce County with regard to retail sales, land area, sales tax

revenue, staffing size, violent crime rate, and organizational structure. The Association adds that

since Clark County does not employ captains, it provides no basis for comparison. The

Association points out that all of the counties it has proposed have a population and assessed

property values which are within 50%, plus or minus, of Pierce County's except that Contra

Costa falls outside of this band for assessed value. The Association urges that Oregon counties

should be excluded from consideration as comparables because captains in Oregon do not have a

statutory right to collective bargaining or interest arbitration. In addition, the Association

maintains that Washington County, Oregon is too small in assessed value and size of land area,

and does not have a comparable position to a Pierce County captain. The Association argues that

Multnomah County, Oregon is not comparable to Pierce County because of its relatively small

size in unincorporated population, land area, and number of employees.

___________________________

Fn:1     In its post hearing reply brief, the Association asserted that it was no longer contending that San Mateo

County is a comparable employer.

 

 

The applicable statute requires a comparison of "like employers." Like employers to

Pierce County are other counties. While the governing statute requires a comparison with "like

employers of similar size on the West Coast," it does not specify how similar size is to be

determined. The reference to similar size has generally been interpreted by interest arbitrators to

refer to population. The parties in this matter generally agree that comparable counties should

contain a population which is between 50% and 150% that of Pierce County.(fn:2) This is a

population band which is frequently utilized by interest arbitrators and will be followed here.

________________________

Fn:2     The County has proposed that an exception be made for Kitsap County, which has a smaller

population.

 

 

In order to make a reasonable comparison, there must be an adequate number of

comparable jurisdictions. If too few are chosen, then the significance of the situation in

individual jurisdictions is unreasonably magnified, particularly when information from one or

more of the comparables on a particular issue in dispute is either unavailable or inapplicable. On

the other hand, if the population band chosen provides more comparables than are needed for a

reasonable comparison, it is appropriate to narrow the number utilized by considering other

factors, such as assessed valuation, which would provide comparables which are more like the

jurisdiction in dispute, and therefore would make more relevant comparisons. For obvious

reasons, it would be best to utilize counties in proximate or comparable labor markets.

Arbitrators are reluctant to utilize comparables from other west coast states, namely Oregon and

California, because of the significant differences between those states and Washington. As

Arbitrator Jane Wilkinson observed in Snohomish County Corrections, PERC No. 20802-1-06-

0488 (2007), at page 10:

 

This Arbitrator prefers Washington jurisdictions to those from other states

because of the difficulty of comparing collective bargaining law, statutory

benefits, labor markets, and cost of living.

 

For instance, in Oregon, law enforcement captains do not have the statutory right to bargain

collectively. Both California and Oregon have significantly different taxing regimes than does

Washington. Each state has their own retirement system for law enforcement personnel. In

recognition of the many differences, arbitrators generally will utilize Oregon or California

jurisdictions as comparables only if there is a good reason, such as an insufficient number of

comparable Washington employers of similar size which could be utilized.

 

The four Washington counties proposed as comparables by the Employer have the

following populations:

 

Clark 431,200

Kitsap 247,600

Snohomish 704,300

Spokane 465,000

 

Pierce 813,600

 

I have determined to utilize Snohomish and Spokane Counties as comparable employers, since

each of them has a population which is within 50% of the population of Pierce County. While

Spokane County is on the east side of the state, it is much closer in proximity than are the

California counties proposed by the Association. There is insufficient evidence that Spokane

County does not employ corrections personnel which are like the captains employed by Pierce

County. According to the job description for the Spokane County corrections lieutenant, that

position "[m]anages the daily affairs of the detention facilities" and "functions as assistant to the

Jail Commander." The Spokane County corrections lieutenant participates as part of the

management team in union negotiations and labor management meetings. I find that the Spokane

County corrections lieutenants are similar to the Pierce County captains who manage individual

jails under the direction of the corrections bureau chief. I shall exclude Kitsap County as a

comparable employer because it has less than a third of the population of Pierce County. While

its proximity to Pierce County does warrant some flexibility in whether it meets the "similar

size" standard in order to be compared with its neighbor, Pierce County, the disparity is just too

great to meet the standard required by the statutory language. While I consider Clark County to

be sufficiently of similar size to Pierce County for purposes of comparison, it cannot be utilized

as a comparator because it does not employ "like personnel." Clark County does not employ

captains. The County maintains that the commanders employed in Clark County are comparable

to the Pierce County captains. I agree with the Association's contention that the Clark County

commanders are more like Pierce County lieutenants. While there was a lack of sufficient

testimony on the matter, according to the commander's job description and the organizational

chart for the Clark County Sheriffs' Department, commanders are precinct commanders and shift

supervisors at the jail, which are certainly not at the same level of responsibility as the division or

jail command responsibilities of the Pierce County captains.

 

The two Washington counties I have determined to be of "similar size" to Pierce County

are not sufficient in number to make a reasonable comparison. Presumably, the legislature

extended the parameters for comparables to include the entire west coast of the United States so

that there could be a sufficient number of comparables for the largest Washington employers. On

the other hand, as previously discussed, there are significant differences between the states,

particularly in taxing authority, retirement plans, cost of living, statutory framework, etc.

Therefore, the Association's position that the list of comparables should consist entirely of

California jurisdictions and Washington cities, except for Snohomish County, is unrealistic,

unreasonable, and contrary to the views of respected arbitrators that the focus of the comparison

should be on in-state like employers, if possible. City of Everett, PERC No. 12476-1-96-272

(Axon, 1997); City of Tacoma, PERC No. 20867-1-07-0489 (Gaunt, 2008). I have determined to

limit the number of out-of-state comparables to two, one in Oregon and one in California, so that

the out-of-state comparables are not weighted more heavily than Washington jurisdictions.

 

From the State of Oregon, I have determined to use Multnomah County, but not

Washington County, as a comparable. Multnomah County has a population of about 715,000.

This is of "similar size" to Pierce County's population of about 786,000. Both Multnomah and

Pierce County encompass large cities. Portland, Oregon is situated within Multnomah County.

Thus, Multnomah County is part of a metropolitan area, just as Pierce County is part of the

Seattle-Tacoma metropolitan area. According to statistics provided by the Association, per

capita income and medium home prices in Pierce County and Multnomah County are very close.(fn:3)

I am not persuaded by the Association's argument that Multnomah County is not a like employer

because such a small fraction (3.25%) of its population resides in unincorporated areas, and

therefore it has only 32 deputies assigned to patrol, while Pierce County has 131 patrol deputies.

Like Pierce County, Multnomah County employs personnel in both law enforcement and

corrections. According to figures provided by the Association, Multnomah County employs 324

commissioned corrections officers. Thus, the total number of commissioned law enforcement

and corrections officers employed in Multnomah County is within 50% that of the 639

commissioned officers employed in Pierce County. That is sufficiently close to be deemed,

overall, a similar sized employer, despite the differences in size in their patrol units. That

Multnomah County commanders (which are comparable in function to Pierce County captains)

are not allowed collective bargaining by Oregon's collective bargaining statute, does not alter

this conclusion. The Association, in effect, argues that because of this Oregon law, in Oregon

there cannot be like personnel to Pierce County captains. Washington statute does not contain a

provision which would require such an exclusion.(fn:4) Moreover, captains and commanders in

Oregon supervise or manage employees who are eligible for collective bargaining. It is likely

that the salaries and benefits of the captains and commanders in Oregon are influenced by the

collective bargaining involving those under their command.

____________________

Fn:3     According to those statistics, the per capita income in Multnomah County in 1999 was 107.91 % that of

Pierce County. The median home prices in Multnomah County in 2008 was 107.75% that of Pierce

County.

 

Fn:4     In fact, the Association itself has proposed certain California counties as comparable to Pierce County,

even though their captains are unrepresented.

 

 

I have excluded Washington County as a comparator. I agree with the Association's

argument that the evidence presented by the County fails to establish that Washington County

has employees who perform similar duties to those performed by Pierce County captains. Based

on the documentary evidence the County provided, it appears that Washington County does not

utilize the rank of captain. In fact, the County concedes that it found no functional match on the

law enforcement side of its operations. On the corrections side, the County suggested the

Washington County lieutenant as comparable to the Pierce County captain. However, it provided

insufficient evidence to establish that Washington County lieutenants have equivalent

duties to those of Pierce County captains. Pierce County correctional captains each manage ajail

or a division. It is not clear that Washington County lieutenants have such broad authority.

Rather, according to evidence presented by the County, lieutenants in Washington County

"[p ]lan, assign and supervise activities in assigned area."

 

Just as I have selected one Oregon comparator, I shall select one California comparator.

The Association's selection of California comparators relied heavily on their population and

assessed valuation compared with those of Pierce County. As the Association recognizes,

different states have different ways of calculating assessed valuation. Therefore, I am not

convinced that a comparison of published data about assessed valuation is the best method of

determining California employers which are like Pierce County. Rather than assessed valuation,

I shall rely on the data provided by the Association for 2007 median household income. Of the

California counties proposed by the Association, only one has a population between 80% and

120% of that of Pierce County and median household income that is between 90% and 110% of

that of Pierce County. It is San Joaquin County.(fn:5) Moreover, San Joaquin County, like Pierce

County, contains a city of significant size, Stockton.(fn:6) The County points out that the cost of

living is significantly higher in some parts of California than it is in Pierce County, relying on

statistics published by the American Chamber of Commerce Research Association (ACCRA).

Those statistics indicate that some of the Union's proposed California comparables do have a

much higher cost of living than does Pierce County. However, these statistics indicate that San

Joaquin County is significantly closer to Pierce County in cost of living than are most of the

other California counties proposed by the Association as comparables, and are close enough for

purposes of comparison here.(fn:7) Thus, the comparators selected in accordance with

RCW 41.56.465 (2) are the following counties: Snohomish, Spokane, Multnomah, and San

Joaquin.

_________________________

Fn:5     The Association represented that San Joaquin's population is 86% that of Pierce County and its median

household income is 93% that of Pierce County.

 

Fn:6     Stockton, in San Joaquin County, has a population of about 286,000 while Tacoma, in Pierce County

has a population about 202,000.

 

Fn:7     According to the ACCRA published statutes, San Joaquin has a cost of living index of 116.6, while

Pierce County's is 107.7.

 

 

The Association further contends that the wages and benefits provided by the cities of

Tacoma and Seattle to their police captains should be considered as "secondary" comparables. In

this regard, the Association points to evidence that Pierce County law enforcement personnel

work side by side with Tacoma police personnel on a shared dive team, a K9 unit, a

communication center, on numerous committees at major events, and at the jail. It further points

out that Pierce County and Tacoma compete for new hires at joint recruiting events. The

Association observes that the County has utilized Tacoma and Seattle as comparables in health

care negotiations with its various unions, and referenced city of Tacoma executive salaries when

determining salaries for its own upper management.

 

Most arbitrators agree that cities and counties are not like employers within the meaning

of the governing statute. Cities and counties have different functions and different sources of

revenue. Moreover, the statute requires a comparison with employers of similar size, and there

has been no contention that Seattle and Tacoma are of similar size to Pierce County. The

Association appears to recognize that Seattle and Tacoma are not like employers within the

meaning of the statute, arguing instead that each should be considered as a "secondary

comparable." The governing statute does not provide for two different types of comparable

jurisdictions. RCW 41.56.465 (1)( e) does require consideration of "other factors ... that are

normally or traditionally taken into consideration in the determination of wages, hours, and

conditions of employment." One such factor is turnover. If there was excessive turnover in this

bargaining unit because members were leaving to take similar jobs for the cities of Tacoma and

Seattle, then the reasons for this could be explored. However, there was no indication that this

was the case. In these circumstances, in order to consider the cities of Tacoma or Seattle as

comparators, one must put aside the statutory specification of the type and size of employers that

may be considered as appropriate for comparison. Accordingly, the cities of Tacoma and Seattle

shall not be designated as comparable employers for purpose of determining wages, hours, and

working conditions.

 

COST OF LIVING

 

RCW 41.56.430(1)(c) requires consideration of "[t]he average consumer prices for goods

and services, commonly known as the cost of living." RCW 41.56.465( d) requires consideration

of any changes in this regard during the pendency of the proceedings. According to the U.S.

Department of Labor, Bureau of Labor Statistics, the consumer price index (CPI-U) for the

Seattle-Tacoma-Bremerton area rose by an annual average of 4.2% during 2008. For the 12

month period ending in June 2009, the CPI-U for the Seattle-Tacoma-Bremerton area fell by

0.4%. For the 12 month period ending in December 2009, it rose by 1.4%.

 

OTHER CONSIDERATIONS

 

In addition to the specific criteria set forth in RCW 41.56.465(a)-(d), Subsection (e) of

that statute directs the Panel to consider "[ s ]uch other factors, not confined to the factors under

(a) through (d) ... , that are normally or traditionally taken into consideration in the determination

of wages, hours, and conditions of employment. .. " Accordingly, the factors discussed below

have been considered.

 

Ability to Pay

A factor frequently raised in contract negotiations and also considered by arbitrators is the

ability to pay wage and benefit increases. Clark County, PERC No. 11845-1-92-252 (Axon,

1996); King County, PERC No. 21957-1-08-0519 (Lankford, 2009). The severe recession this

country has experienced over the past several years has had a particularly adverse effect on the

County's finances. Property taxes are obviously negatively affected by the decreases in assessed

valuations and new construction which the County has experienced in recent years. The

County's interest income has diminished considerably as interest rates plummeted. The County's

sales tax revenues have decreased by over 15% over the past two years. The Association points

out that prior to this dip, sales taxes had risen during the previous ten years. That does not

detract from the problem the County now faces in having to reduce expenditures to match

revenues. The County is obligated to balance its budget. In order to deal with its fiscal

problems, the County has reduced its reserves from 13.4% to 8.1 %, according to Patrick Kenney,

the County's budget and finance director. Mr. Kenney testified that the recommended standard

reserve for counties is 15% or about two months of expenditures. He testified that if the

County's reserves dropped any further, it would not have enough money to pay its bills. Mr.

Kenney testified that since 2008, the County has cut about 424 full-time employee equivalent

positions from its budget, including 54 in the Sheriffs Department. These were either positions

that were budgeted and not yet filled, or positions that had become vacant. The County

implemented furloughs in a number of departments, whereby employees were required to take

unpaid leave periodically throughout the year. In addition, the County has had to layoff 194

employees. As Arbitrator Lankford observed in King County, supra, "[f]or an interest arbitrator,

no indicator of economic distress is more compelling than layoffs." Undersheriff Eileen Bisson

testified that in the Sheriff s Department, 17 vacant positions have not been filled, and seven

professional staff employees have been laid off. Undersheriff Bisson further testified that by July

1, 2010, an additional seven positions must be cut, whether by attrition or by layoff. Mr. Kenney

testified that as of the date that he testified, the County's finances continued to remain "bleak."

 

The County's poor financial condition, particularly its falling revenues and resulting

layoffs, must be considered when determining the appropriate compensation levels for the

captains. The Association's argument that the County's difficult financial situation does not

impact the County's ability to pay in this matter because it involves only a very small percentage

of the County budget is not persuasive. It should be expected that its membership would be

affected by the County's budget woes as are other County employees.

 

Recruitment and Retention

Arbitrators often consider employee turnover, or lack thereof, when determining

appropriate compensation rates. A high level of turnover or difficulties in recruitment may

signify that the compensation levels are inadequate. Debbie Young, the County's assistant labor

relations manager, testified that the County has had no problem with turnover among its captains.

The Union argues that this factor should not be considered because it takes many years for an

employee to reach the rank of captain, and people do not leave near the end of their careers.

 

The recognized fact that there is minimal turnover among captains and no indication of a

recruitment problem is a consideration here. Certainly, ifthere had been such a problem, it

would be raised at the bargaining table as justification for a compensation increase.

 

Internal Equity

As the Neutral Chair has held in other interest arbitration proceedings, the settlements

reached by the employer with its other bargaining units are significant. While those settlements

are affected by the peculiar situation of each bargaining unit, still there is an understandable

desire by the employer to achieve consistency. From the union's standpoint, it wants to do at

least as well for its membership as the employer's other unions have already done. At the

bargaining table, the settlements reached by the employer with the other unions are likely to be

brought up by one side or the other.

 

In 2009, each of the Department's other interest arbitration eligible groups, the deputy

sheriffs, the corrections officers, and the correctional lieutenants, received the same 5.5% wage

increase. These increases were negotiated prior to the recent severe economic downturn. The

2010 and 2011 increases for these bargaining units have not yet been settled. All of the County's

other bargaining units received a 5.22% increase in 2009, a 2.5% increase in 2010, and are due to

receive a cost ofliving increase in 2011 based on 90% of the Seattle-Tacoma-Bremerton CPI-U

increase reported in July 2010 for the prior 12 months, but not less than 2.5%, nor greater than

5.5%.

 

Both parties agree that it is important to maintain an appropriate wage differential

between the captains and the next lower rank, the lieutenants. It is customary for higher ranking

employees to be compensated at a higher rate than those they supervise. The County asserts that

that wage rate differential should be about 15%, as that has been the historical practice. From

2003 through 2007, captains' wages have been set at 15% above the top step wages for the

lieutenants who they supervise. This included the years 2006 and 2007, for which the parties

agreed upon wages in their initial collective bargaining agreement. In 2008, correctional captains

received wages that were 15.03% higher than the top step wages received by corrections

lieutenants. That same year, the wage rate received by law enforcement captains was 14.45%

higher than the top step wage rate for law enforcement lieutenants.

 

The County argues that based on the historical practice this differential should remain at

about 15%. The Union contends that the wage differential should be increased to reflect the

additional 8% of base pay for which the County's law enforcement lieutenants and other lower

ranks are eligible based on the Career Progression Officer (CPO) Program which was

implemented on January 1, 2008. According to the CPO Program, law enforcement lieutenants

can receive between 1 and 8% added to their base wage based on a formula which takes into

account education degree, years of service and assignments. A lieutenant could reach the 8%

level upon completing 18 years of service with the Department, 4 years of service as a lieutenant,

and service in a "core or special assignment"(fn:8) The record presented does not clearly reveal the

actual percentage increases that each lieutenant has received as a result of the CPO Program. Ms.

Young testified that not everyone is eligible for CPO pay, and those that are eligible are on

various incentive levels of the program.

________________________

Fn:8     The core or special assignment requirement may be waived under certain circumstances.

 

 

The Association argues that CPO pay should be considered as part oflieutenants' base

pay for purposes of comparison with captains' base pay because CPO pay is automatic.

However, the evidence presented does not support this contention. In the absence of evidence

regarding the actual application of CPO pay to lieutenants, it would not be appropriate to add

CPO pay to the lieutenants' base wages for purposes of determining the wage differential

between lieutenants and captains. Moreover, the majority oflieutenants employed by the

Department are assigned to corrections, and those lieutenants are ineligible for the CPO Program.

The new CPO Program for law enforcement personnel beneath the rank of captain is relevant to

whether or not the law enforcement captains should be eligible for incentive or longevity pay

themselves, so as to diminish the overall compensation compression that has been caused by

implementation of the CPO Program.

 

The Association presented evidence which established that some lieutenants are receiving

more gross pay than are captains. This is explained, in large part, by the lieutenants being

eligible for overtime pay, while the captains are considered to be salaried management who are

not eligible for overtime pay. Captain Bomkamp testified that he took home more pay in 2008

when he was a lieutenant than he did in 2009 as a captain. Captain Bomkamp testified that while

his assignment as captain for the Criminal Investigation Division (CID) requires that he work

extra hours responding to homicide scenes, he probably worked more hours when he was a

lieutenant. Captain Bomkamp testified that in 2009, while he made $110,000, the two CID

lieutenants who he supervised, made $123,000 and $132,000. Captain Smith, in his testimony,

agreed that it is appropriate for lieutenants who work more hours to receive more pay, even if

that may mean that certain lieutenants receive more total pay than do captains. Overall, I find

that there is insufficient reason to find that the 15% wage rate differential between lieutenants

and captains, which has been the historical practice and in 2006 was the negotiated agreement, is

no longer sufficient.

 

The Association argues that captains are compensated at a rate below that of other County

managers. In this regard, the Union relied on a compensation study performed by a private

contractor at the request of the County in 2004. That compensation study put the captain's

position in the same pay band as the County's pharmacy coordinator, accounting manager,

special assistant to the director of Public Works, clerk of Superior Court, and Wastewater Utility

manager. Ms. Young testified that the County never implemented this compensation study

because it determined that it had not been done well. I find that the 2004 compensation study has

no value in this preceding, not only because it was never implemented and its underlying

methodology is not clear, but also because the governing statute requires a comparison with like

personnel, and a captain is not like a pharmacy coordinator or the other managerial positions

referenced in the study.

 

MANDATORY SUBJECTS FOR BARGAINING

 

The Association proposes the addition of the following language to Article 3:

 

The employer further recognizes that the Civil Service Rules for

Sheriff s Employees, Pierce County Administrative Guidelines for the

Career Service, the Pierce County Sheriffs Department Manual and all

subordinate Sheriffs Department Bureau and Unit rules, policies and

procedures that affect wages, hours, and working conditions of

Association members are subject to collective bargaining.

 

The County argues against the inclusion of this new language.

 

Captain Smith testified that in the past, before the captains organized, the County has

changed its civil service rules and the captains had no standing to object. The Association asserts

that its members' working conditions and rules regarding seniority are governed by the County's

rules and policies. The Association maintains that the Agreement should contain an

acknowledgment of its rights to bargain. Ms. Young testified that the County has repeatedly

demonstrated that it is aware of its legal obligation to bargain by negotiating prior to

implementing any rule changes that impact wages, hours or working conditions. She testified

that no County contract has such a broad and general statement of the County's duty to bargain as

the Association has proposed. She further testified that the proposed language would allow the

Association two bites at the table, pursuing both a grievance and an unfair labor practice, with

potentially inconsistent results. The County argues that this potential for inconsistent results is

significant because arbitrators may not be well-versed in determining what constitutes a

mandatory or permissive subject of bargaining. The County points out that the Association has

offered no evidence of problems, language from comparable employers, or other support for its

proposal.

 

I find that there is insufficient support for the proposed addition to Article 3. A party

proposing the addition of new language to a labor agreement has the burden of establishing that

the statutory factors support its position. Regarding its proposal to amend Article 3, the

Association has not demonstrated any need to change the status quo and has not relied upon any

of the statutory criteria.

 

WAGES

 

The Association proposes that the following wage proposal replace the existing language

in Article 5, Section 2:

 

Captains and Correctional Captains shall maintain an equal hourly two

(2) step wage rate based on the greater of:

 

•           Step one at 112.5% and Step 2 at 120% of the hourly wage rate

for a top step lieutenant including current and future top step

CP03 pay as defined in the Guild Local 1889 Career Progression

Officer Program incentive pay, and any future incentive pays that

may be agreed to by the County and Guild Local 1889, or;

•           Step one at 112.5% and step 2 at 120% of the hourly wage rate

for a top step corrections lieutenant including any current or

future incentive pay programs in the agreement by and between

the County of Pierce and the Correctional Lieutenants Union,

Local 3752LT.

 

Such pay increase to the Captain's Association members shall

immediately follow any pay increase negotiated by and between the

Pierce County and the Guild Local 1889 and Pierce County and the

Correctional Lieutenants Union, Local 3752LT, to be effective in the

next full pay period after the effective date of the Local 1889 or Local

3752LT contracts.

 

Should Pierce County not reach a wage settlement in December 2009

Guild Local 1889 or Local 3752LT negotiations or any subsequent

negotiation occurring in any year of the Captain's Association

agreement, Pierce County shall grant the Association members a wage

adjustment effective in January of the following year equal to 100% of

the bi-monthly Seattle-Tacoma-Bremerton CPI-U report for July of the

preceding year, but not less than 3.5%, or greater than 5.5%. At such

time as the County reaches agreement with Guild Local 1889 or Local

3752LT, the County shall immediately apply the formula of 112.5% for

step one and 120% for step 2 based on the newly negotiated Guild Local

1889 or Local 3752LT rates with retroactivity to match that agreed to the

Guild Local 1889 or Local 3752LT agreements.

 

Effective with the ratification of the January 2009 to January 2012

agreement by and between the Pierce County Captain's Association and

Pierce County, the County shall increase Captain and Correctional

Captain rates in accordance with the above wage proposal and shall

thereafter maintain a step one rate at 112.5% of the highest wage rates

listed above and step 2 at 120% of the highest wage rate listed above.

 

The County's wage proposal is as follows:

 

January 1, 2009 at 5.5% increase for all Captains. For 2010 and 2011 all

Captains would receive a wage adjustment equal to 90% of the SeattleTacoma-

Bremerton CPI-U but not less than 2.5% or greater than 5.5%.

 

In addition, after five years and ten years as a Law Enforcement Captain,

employees would receive an additional 4% for a total of 8% after ten

years. This pay would not be available to any employee hired prior to

December 1, 1982, (as longevity pay is available to employees hired

prior to this date).

 

The Association argues that its proposal is justified because it is necessary in order to

avoid salary compression and because captains' compensation is below like positions in

comparable agencies. The Association contends that correctional captains should be

compensated at the same rate as law enforcement captains since there is essentially no difference

injob duties and responsibilities.

 

The County urges the adoption of its wage proposal since it is consistent with the

increases received by other County employees, is supported by analysis of the comparabbs, will

maintain the 15% differential between lieutenants and captains, and is supported by the change in

consumer prices and the lack of turnover. The County urges that the overriding principle should

be to determine what is a fair resolution given the County's dire economic situation. The County

maintains that it is appropriate to pay law enforcement captains at different rates than are paid to

correctional captains. The County argues that these two types of captains have different duties,

powers, and certifications, and in most jurisdictions, law enforcement is paid more than

corrections.

 

As previously discussed, the governing statute requires consideration of a comparison of

the wages, hours, and conditions of employment with "like personnel of like employers." While

the parties agree that Snohomish County law enforcement captains are comparable with law

enforcement captains in Pierce County, they disagree about which Snohomish County position is

comparable to a Pierce County correctional captain. The County maintains that it is the

Snohomish County detention manager while the Association's position is that it is the

Snohomish County major.

 

Sherry Hieb is a human resources analyst for the County. Ms. Hieb testified that she

determined that the appropriate match in Snohomish County for the correctional captain is the

detention manager. She testified that she spoke to Chief Baird of the Snohomish County

Sheriff s Office, who formerly was an employee of the Pierce County Sheriffs' Office, and he

had advised her that the detention manager and the correctional captain were similar positions

and that the major position was equivalent to a deputy director. She testified that she confirmed

this in her review of the job descriptions. My review of the job descriptions leads to the same

conclusion. The Snohomish County "major" job description specifically designates that as an

exempt position. The applicable job descriptions indicate that both the Pierce County

correctional captain and the Snohomish County detention manager are responsible for planning,

supervising and managing the operations, and developing division objectives and the budget.

The detention manager develops policies and procedures while the correctional captain assists in

their development. Overall, I find that the functions of the correctional captain and the detention

manager are essentially comparable.

 

Monthly compensation provided by the comparable employers is set forth below.

Clothing allowance is included because it is a monetary benefit which is routinely provided.

 

Law Enforcement                   Wages             Clothing allowance (¸12)       Total

Snohomish County                 $10,095                       $83                          $10,178

Spokane County                        8,198                         75                              8,273

Multnomah County                     9,345                           0                              9,345

San Joaquin County                  10,583                         92                            10,675

Average (2009)                                                                                 $9,618

 

Pierce County (2008)                $8,869                           0                            $8,869

 

Corrections                              Wages             Clothing allowance (¸2)             Total

Snohomish County                 $9,293                         $0                                $ 9,293

Spokane County                       7,235                         75                                   7,310

Multnomah County                   9,345                           0                                   9,345

San Joaquin County                  N/A(fn:9)                N/A                                    N/A

Average (2009)                                                                                    $8,649

 

Pierce County (2008)              $8,810                           0                                 $8,810

____________________

9          This information was not available since the Association focused its evidence on the

comparators' compensation paid to law enforcement captains, rather than to corrections captains.

 

 

The Association has proposed that a compensation comparison should include the

maximum total compensation that a captain in the comparable jurisdictions could receive in

wages, longevity pay, deferred compensation, clothing allowance, educational incentive, and sick

leave incentive. It cannot be assumed that all or even that a substantial number of employees in

the comparable jurisdictions receive those maximum amounts, except for the clothing allowance.

Absent such evidence, it would not be accurate to base a compensation comparison on those

amounts.

 

The Association contends that the law enforcement captains and the correctional captains

should be compensated at the same rate, rather than with the small disparity that now exists. It

relies on a PERC decision which placed the law enforcement captains and the correctional

captains in the same bargaining unit. The Association also points to the fact that both types of

captains receive the same state-required training for the management portions of their jobs.

 

I am not persuaded that the County's historical practice of paying law enforcement

captains and correctional captains at different wage rates is inappropriate based on the statutory

criteria. While these positions have some similar responsibilities, there are obvious differences

in their jobs and in their work environments, and there has been no crossover in assignments.

Law enforcement captains are subject to state certification pursuant to RCW 43.101.095, a

statute which does not apply to corrections. Law enforcement employees have broader arrest

authority than those working in corrections. The hearing officer in the PERC case referenced by

the Association, Decision 8892-PECB (2005), did not deal with the question of whether law

enforcement captains and correctional captains should be paid at the same rate. Rather, that

decision focused on whether these positions had a sufficiently similar community of interest to

be included in the same bargaining unit. Snohomish County and Spokane County each pay law

enforcement captains more than their correctional captains (or equivalent). Multnomah County

pays them at the same rate. No information in this regard was provided for San Joaquin County.

Thus, the comparability factor does not support the Association's position that law enforcement

captains and correctional captains should be paid at the same rate.

 

I conclude that, consistent with the County's wage proposals, bargaining unit employees

shall each receive a 5.5% wage increase retroactive to January 1,2009, and an additional 2.5%

wage increase retroactive to January 1,2010. For 2011, all captains shall receive a wage

adjustment equal to 100% of the bi-monthly Seattle-Tacoma-Bremerton CPI-U report in July

2010 (for information from June 2010 compared to the 12 months beginning June 2009), with a

minimum of2.5% and a maximum of 5.5%. The awarded 2010 wage increase of2.5%

corresponds to the County's offer ofa minimum wage increase for 2010, inasmuch as the

applicable cost of living 2009 was less than 2.5%. The 2011 cost of living wage increase which

is awarded is the same formula as the one that the parties themselves negotiated in their previous

collective bargaining agreement. These wage increases will essentially maintain the 15%

differential over a top step lieutenant's wage rate. Moreover, the wage increase awarded will

maintain the captains' position in relation to the comparable jurisdictions, which is behind the

average for law enforcement captains, and above the average for correctional captains. Most

significantly, the extremely difficult economic situation experienced by the County, which has

resulted in many layoffs, strongly suggest that higher wage increases at this time are just not

reasonably affordable or justified. Moreover, the increases awarded are consistent with the

modest increases in the cost of living, as well as the lack of any problem in recruiting or retaining

captains. In addition, they are largely consistent with the increases provided by the County to its

other bargaining units.

 

The County's wage proposal includes a new longevity benefit for law enforcement

captains which would pay an additional 4% at five years, and 8% at ten years of service as a

captain. This new benefit serves to reduce the level of compensation compression between law

enforcement captains and lieutenants which has resulted from the implementation of the CPO

Program in the Deputy Sheriffs' Guild bargaining unit. It shall be part of the compensation

increase which shall be awarded. However, it is insufficient to fully address the salary

compression problem, inasmuch as law enforcement lieutenants may receive the maximum CPO

Program benefit after 18 years of service with the Department. This compression problem would

be lessened if the longevity benefit for captains also recognized years of service with the

Department. Therefore, it shall be ordered that captains are eligible for the longevity benefit of

4% after five years service as a captain or 20 years service with the Department, whichever

occurs sooner, and 8% after 10 years service as a captain or 25 years service with the

Department, whichever occurs sooner.

 

UNIFORM AND CLOTHING ALLOWANCE

 

Currently, Section 5.5 of the parties' collective bargaining agreement provides:

 

Section 5 - Uniforms. Employees required to wear a uniform as their

regular clothing will be provided two issues upon employment which

will be replaced on an "as needed" basis as determined by the Sheriff or

designee.

 

The Association proposes the addition of the following sentence to this section:

 

Captains shall be provided an annual clothing allowance of $200.00

payable during the first full pay period of the year.

 

The Association maintains that its proposal for a clothing allowance "is for cleaning and civilian

clothing offset," and is a small amount compared to the benefit provided by the comparables.

 

The County opposes the addition of this new benefit. According to Ms. Young, the

unions representing the law enforcement officers and the correctional officers each, in the past,

gave up their clothing allowances in exchange for a pay increase. The County argues that the

existing pay differential between lieutenants and captains already incorporates the clothing

allowance. The County further argues that the captains do not need a clothing allowance because

the County provides them with uniforms. The County maintains that to the extent that captains

wear civilian clothes to work, they should not be treated differently than other non-commissioned

employees of the Sheriff s Department who are required to wear professional attire without a

clothing allowance.

 

Snohomish County provides its captains with a clothing allowance of 1 % of the top step

lieutenant base wage per month. Spokane County's captains receive a clothing allowance

amounting to $900 per year. Multnomah County provides no clothing allowance. San Joaquin

County provides a clothing allowance of$1,100 per year.

 

No new clothing allowance shall be awarded. While the payment of a clothing allowance

is supported by the practice among the comparables, other factors lead me to conclude that it is

not warranted at this time. The captains are not required to pay for their uniforms, but rather are

issued them as needed. Lower ranks in the Sheriff s Department receive no such benefit. Most

significantly, in view of the substantial wage and longevity increase which has been awarded in

the context of the County's dire economic condition, now is not the time for an additional

compensation benefit.

 

PAY FOR COMMAND DUTY OFFICERS

 

The first two sentences of Section 5.10 currently read:

 

Effective January 1,2007, a Correctional Captain who is designated and

serves as Command Duty Officer (CDO) shall be entitled to a flat $250

bonus for such week served as CDO, regardless of the number of hours

worked. Only one bargaining unit employee will be able to receive such

a bonus per week and there will be no weekly guarantee or entitlement to

such assignment. . . .

 

The Association proposes that this language be modified to read:

 

Effective January 1,2009, Captains and Correctional Captains who are

designated and serve as Command Duty Officer (CDO) for their

respective bureaus shall be entitled to

(1)        One (1) hour straight-time wage on work nights, Monday through

Friday, for sixteen hours CDO.

(2)        Four (4) hours of straight-time wage for each of the two (2)

twenty-four (24) hour weekend CDO, starting Saturday morning

through Sunday, and Sunday morning through Monday morning.

(3)        Any on-call shift which starts on a paid County holiday will be

paid at six (6) hours straight time wage for on-call duty for

twenty-four (24) hours.

Only one Captain and one Correctional Captain bargaining unit

employee will be eligible to receive such a bonus per week and there will

be no weekly guarantee or entitlement to such assignment. . . .

 

The County proposes to retain the current language with a $25 per week increase (from

$250 to $275) in the Command Duty Officer (CDO) pay for correctional captains only.

 

Each week the Department designates one CDO for law enforcement and one for

corrections. An employee in CDO status must, during their off duty hours, remain within the

County, sober, and capable of being reached by beeper, radio, or phone. Usually, the call

involves a subordinate officer passing information about a particularly significant event up the

chain of command. Occasionally, a CDO must actually go to an event. Captain Smith testified

that he is limited in the things that he can do while he is the designated CDO, such as hiking and

skiing, and it is disruptive to his sleep. The CDO responsibility is rotated among the command

staff. In essence, CDO pay is compensation for being on call. Each correctional captain serves

as CDO about one week per month. Each law enforcement captain is assigned as CDO during

eight or nine weeks in a year. Currently, the correctional captain receives $250 for each week

assigned as a CDO. The law enforcement captains are ineligible for CDO pay.

 

Prior to the establishment of the captains' bargaining unit, captains did not receive any

additional pay for their CDO responsibilities. Ms. Young testified that during the negotiations

leading to the captains' initial 2006-2008 collective bargaining agreement, the Association

proposed CDO pay for correctional captains, justifying it as being a replacement for the

personally assigned County vehicles which had been taken away from the correctional captains,

while law enforcement captains retained theirs. Ms. Young testified that based on this argument,

and inasmuch as only the correctional captains may have to drive into work in their own car

while off duty in order to respond as the CDO, the County agreed to provide CDO pay only for

them.

 

The Association maintains that a County car assigned to a law enforcement captain is not

compensation, but a required tool, and that in any event, it is of limited benefit to the two law

enforcement captains who each have a commute of less than six miles. The Association points

out that its proposal is the same as the standby pay benefit which is currently received by lower

ranking Department employees. The Association further points out that San Joaquin County

pays "standby pay" equal to 20% of the regular hourly rate. However, Captain Smith

acknowledged that standby pay is different than on call pay. Standby pay requires an employee

to be available to immediately respond to a scene, in uniform, when called. Snohomish,

Spokane, and Multnomah Counties do not provide CDO pay, and I am not persuaded that San

Joaquin County does either.

 

The County's proposal to increase CDO pay for correctional captains from $250 a week

to $275 a week shall be awarded. This provides a 10% increase to the benefit which was just

newly negotiated in the last agreement. Any additional extension or increase in this benefit is not

supported by the practice among the comparators. The difference in treatment between the law

enforcement captains and the correctional captains is explained by the parties' bargaining history.

The testimony of Ms. Young in this regard was not contradicted by the Association. Otherwise,

the captain's position has been considered a salaried management position which does not

provide additional pay for work outside of regular working hours. Moreover, the current difficult

economic circumstances mitigate against any additional increase in this monetary benefit.

 

CALLOUT PAY

 

The Association proposes that the following new provision be added to the Agreement, as

Section 5.12:

 

A "call-out" is defined as an employee assigned to CID returning to duty

from an off-duty status to respond to an incident which is not scheduled

in advance, excluding CDO duties. CID Captains shall be compensated

for a minimum of three (3) hours straight time wage or the actual time

from notification to leaving the incident, dispatch area, precinct or office

whichever is greater.

 

The County opposes adding this provision to the Agreement.

 

The Association argues that it is proposing call out pay for the CID captain only because

that employee is more burdened by call outs from off duty status than any of the other captains.

CID Captain Bomkamp, during 2009, responded while off duty to major crime scenes on nine

occasions. Lower ranking employees of the Department who are called out from off duty status

receive a minimum of three hours of overtime.

 

In the comparable jurisdictions, Snohomish, Multnomah and Spokane Counties do not

provide call out pay to their law enforcement captains. The situation in San Joaquin County

regarding call out pay was not made clear.

 

The County argues against the addition of a call out benefit because call outs have been

rare, the CID captain has control over whether he is to respond to an incident, and a review of the

comparables does not support such a benefit.

 

No new call out benefit shall be ordered. As previously observed, the captain's position

has historically been considered a salaried management position which does not provide

additional pay for work outside of regular working hours. The Association's position is not

supported by the practice in the comparable jurisdictions. In these circumstances and considering

the County's poor economic situation, the addition of this new benefit is not sufficiently justified.

 

EDUCATIONAL INCENTIVE PAY

 

The Association proposes the following new education incentive pay provision to be

inserted into the contract as Section 5.13:

 

Captains are encouraged to attain post graduate education. In recognition

of this commitment to higher education, the County shall provide for

salary increases above the bargaining unit member's set rate of pay for

any bargaining unit employee who holds or attains a Master's Degree at

an additional 2% above his/her base rate of pay.

 

The County is opposed to this proposal.

 

The Association argues that the continualleaming and self-development associated with a

master's degree should benefit a large complex organization such as the Sheriff s Department.

The County responds that there is no evidence or basis to conclude that a captain holding a

master's degree will provide any benefit to the County. It further argues that it does not

understand why a captain that hired on as a deputy sheriff, should receive a pay premium for a

degree obtained decades earlier.

 

None of the County's other employees receive an additional payment for receipt of a

master's degree. None of the selected comparable employers pay a premium to a corrections

captain or its equivalent for having a master's degree. Multnomah County and San Joaquin

County do not pay a premium to its law enforcement captains for having a master's degree.

Snohomish County pays its law enforcement captains a 2.5% pay premium for having a master's

degree. Spokane County pays its law enforcement captains a 9% premium for a master's degree.

 

No new educational incentive shall be awarded. No other County employee receives a

pay premium for having a master's degree. The overall practice of the selected comparable

jurisdictions in this regard is mixed as to law enforcement captains, and provides no support for

providing this benefit to correctional captains. There is insufficient support for this new

compensation benefit, particularly in the context of the County's poor financial condition.

 

CASH OUT OF HOLIDAY PAY

 

The Association proposes that the following new section be added to Article 9 of the

Agreement:

 

Effective January 1,2009, employees may elect to convert up to sixteen

(16) hours of holiday leave to a cash payment annually (minus normal

payroll deductions). The request for this election must be made in

writing on or before January 31 for the year in which the holiday leave

will be accumulated. Payment will be made no later than March 31 of

that year. Any employee who elects this option and terminates

employment during the same calendar year will receive credit for the

holidays recognized in this contract prior to hislher separation, but will

have any remaining totals subtracted from final compensation.

 

The County is opposed to this proposal.

 

The Association argues that its proposal would allow its members to cash out its two

personal holidays. It maintains that it is often difficult for some members to get time off due to

workloads. The Association observes that this is a benefit currently enjoyed by the County's

Corrections Union and the Corrections Lieutenants Union.

 

The County maintains that there are reasons why the corrections unions have this benefit,

and those reasons do not apply to the captains. Ms. Young testified that jails are a 2417 operation

and it saves money for the County to permit corrections officers and lieutenants to convert

holiday leave into cash rather than having to pay overtime to employees who fill in for them.

Ms. Young testified that all captains work a standard workweek, Monday through Friday, and

they are able to take most holidays as they occur. She testified that captains can take their

personal holidays in the same manner as their vacation days, and that she is unaware of any

captain being unable to take all of their holidays. Ms. Young testified that none of the County's

managerial employees are allowed to convert any holiday leave to cash payment.

 

The County argues that the comparables do not support the Association's proposal.

Multnomah County does not provide a holiday leave cash-out benefit. There is no evidence that

San Joaquin County provides such a benefit. Snohomish County does not provide such a benefit

for its corrections captains, but does allow its law enforcement captains to sell back up to 72

hours of holiday comp time in October of each year, but only ifftmding is available. Spokane

County does allow its law enforcement captains and corrections lieutenants to be compensated

for unused personal holidays.

 

I find that there is insufficient support for a new benefit of allowing captains to cash out

their two personal holidays. The evidence presented does not indicate that captains have been

unable to take these holidays. Their situation is different than that of other corrections employees

who may have to be replaced if they elect to utilize an accrued holiday leave day. The captains

are treated regarding their holiday leave in the same manner as other County employees and

managers who work a traditional work schedule. The existing practice does not conflict with the

practice of a majority of the comparable employers.

 

LEOFF " DISABILITY LEAVE SUPPLEMENT

 

The Association proposes the following language be added to the Agreement.

 

Article 10, Section 11 LEOFF II Disability Leave Supplement. This

section applies to LEOFF II employees who suffer an injury or illness in

the line of duty, which qualifies the employee for Worker's

Compensation. Disability leave supplement shall be granted under the

authority of RCW 41.04.500 through 41.04.535; PROVIDED,

HOWEVER, that the parties agree to modify and enhance the statutory

disability leave supplement as follows:

 

10.11.1 Supplemental disability leave benefits during the first six

months of a disability incurred in the line of duty shall include the

following: (1) the disability leave supplement shall begin on the first day

of absence from work caused by the injury or illness which entitles the

employee to benefits under RCW 51.32.090; (2) in determining the

employee's contributions under the Act, charges shall only be made

against the accrued paid sick leave of the employee; (3) notwithstanding

the provisions ofRCW 41.04.510(3), if the employee has no accrued sick

leave at the time of an injury or illness which entitles him to benefits

under RCW 41.32.090, or if the employee's accrued paid sick leave is

exhausted during the period of disability, the Employer shall pay the

entire amount of the disability leave supplement (i.e., the difference

between the Worker's Compensation benefits and the employee's base

monthly salary net of federal income and social security taxes) plus all

Employer contributions to benefits provided by the Employer under

Article 13 of this Agreement up to a maximum of six months from the

date of the injury or illness; and (4) if an employee is required to perform

light duty tasks under the provisions of RCW 41.04.520, the employee

shall continue to accrue all fringe benefits during any such period of light

duty.

 

The County opposes this proposal.

 

The Association points out that the County's collective bargaining agreement with its

lower ranking law enforcement employees contains similar provisions. It argues that law

enforcement captains should be treated the same inasmuch as they have a duty to respond to

incidents they encounter on the street where they are subject to the same dangers rank and file

members face.

 

The County contends that there has not been any need shown for this provision and no

showing that it is supported by reference to the comparables. None of the comparable employers

has this type of disability leave supplement for its law enforcement captains. Ms. Young testified

that the captains are not required to use sick leave if they are absent for part of a day in order to

attend a doctor's appointment. She testified that one of the law enforcement captains has over

1400 hours of accrued sick leave, and the other has almost 1100 hours. She testified that a

review of County records over the last ten years reveals that no law enforcement captain has had

an injury which would qualify for a disability leave supplement, a period during which lower

ranking employees suffered 822 on the job injuries. She further testified that each captain is

eligible for one-time use of a 480-hour catastrophic leave bank, and that benefit has never been

utilized by a captain. The County further observes that during the contract negotiations

preceding this interest arbitration, it had already agreed to an Association proposal for a new

supplemental long-term disability insurance program, with the County contributing $32.75 per

month.

 

I find that the Association has not provided sufficient justification for its proposed new

benefit. It has not been demonstrated that law enforcement captains have such dangerous jobs so

as to justify a need for additional protection for on the job injuries. There was no evidence of any

dangerous situation encountered by a captain. The comparability factor provides no support for

the Association's position. Moreover, it is significant that the County has already agreed to a

costly new related benefit, the supplemental long-term disability insurance program.

 

CORRECTIONAL CAPTAIN DISABILITY LEAVE SUPPLEMENT

 

The Association proposed the following new benefit:

 

Article 10, Section 12. Correctional Captain's Disability Leave

Supplement. Effective January 1,2009, and for all succeeding years,

each Correctional Captain of the bargaining unit shall be provided onehundred

and sixty (160) hours of industrial injury leave to supplement

the difference between the time-loss payments made through the

County's Worker Compensation program and the employee's straighttime

base hourly wage for qualifying injuries sustained as a direct result

of an intentional act of aggression by another person or as a result of

responding to such an incident, as determined by the Sheriff or designee,

or if the employee contracts a serious communicable disease (i.e.

tuberculosis, HIV, etc.) due to exposure on the job as determined by

Pierce County Risk Management. Such industrial insurance leave shall

be non-accumulating, non-transferable and shall not be payable in any

form upon separation of the employee from Pierce County employment.

This shall expire and the leave shall be withdrawn when persons are no

longer represented by this bargaining unit.

 

The County opposes adding this new benefit.

 

The Association argues that its proposal for disability leave supplement for correctional

captains is justified because they face many potential risks on the job that other County workers

do not face. The Association points out that the corrections officers, sergeants, and lieutenants

have in their contracts similar provisions to the one it is proposing. It maintains that it is simply

asking to be treated in the same manner.

 

The County responds that there has not been shown any convincing reason for this

proposal and that it is not supported by the comparability factor. It relies on the testimony of Ms.

Young that correctional captains, on average, have accumulated about 1180 hours of sick leave,

are eligible to receive a 480-hour catastrophic sick leave bank, and are not required to use sick

leave for partial day absences. She further testified that the offices of two of the three

correctional captains are located outside the jail, and the other one works in the booking area, so

that it is unlikely that they would be involved in an incident with an inmate. She testified that a

review of records for the past ten years reveals that while there have been 64 corrections

employee injuries during that time span which qualified for industrial injury leave, none involved

a correctional captain. The evidence presented indicates that of the comparable employers, only

Spokane County provides an additional industrial injury leave benefit for its similar personnel.

 

I find insufficient basis for adding a new benefit to the contract which would provide a

disability leave supplement to correctional captains. The Association has not proven that

correctional captains have such dangerous jobs so as to justify the need for such a provision.

While corrections officers have such a benefit, they have different responsibilities involving daily

contact with inmates. The practice of the comparable employers does not support the addition of

a new disability leave supplement benefit. Moreover, it is significant that the County has already

agreed to a costly new related benefit, the supplemental long-term disability insurance program.

 

EXTENDED SICK LEAVE LOAN BANK

 

The Association proposes the following new benefit:

 

Article 10, Section 13. Extended Sick Leave Loan Bank. Effective

January 1,2009, a special "extended" sick leave loan bank of21 calendar

days (i.e. 15 working days, or 12 working days if on a 4140 schedule)

shall be established for each bargaining unit employee. This benefit shall

be in addition to the supplemental disability leave benefit plans

established in Article 10, Section 11 and Article 10, Section 12 above.

Bargaining unit employees may borrow from their individual sick leave

loan bank following their return to active service from a duty-related

disability subject to the following conditions:

(1)        The loan must be requested within one (1) year following the

employee's return to active service; and

(2)        At the time of the loan the employee must have exhausted all of

their accrued sick leave; and

(3)        At the time of the loan the employee's accrued vacation and

furlough leave, respectively, may not exceed their annual

entitlement; and

(4)        All such sick leave shall be used as set forth in Article 10 of this

contract; and

(5)        Although an employee may borrow from their special sick leave

loan bank as often as necessary during the year following their

return from a duty-related disability, the net aggregate loan may

not exceed 21 calendar days (with credit for all interim loan

repayments); and

(6)        The employee must stipulate in writing that they will fully repay

all special sick leave loans and that the special loan bank shall

have no cash surrender value or other compensable at the time of

the employee's separation, notwithstanding any interpretation of

Article 10.6 or 10.7 of this labor agreement to the contrary. When

the employee returns to work, such repayment shall be made out

of current sick leave earnings at the rate of four hours per month

(i.e. one-half of the employee's monthly sick leave accrual). The

employee may also elect to accelerate repayment by surrendering

to the Employer accrued vacation leave, furlough leave, sick

leave, or any combination thereof designated by the employee. In

the event an employee terminates active service without having

fully repaid the Employer for all sick leave loans, the Employer

shall deduct the actual cost of any payments made under this

section from compensation or other money payable to the

employee.

 

The County opposes this proposal.

 

The parties' arguments regarding this proposal are essentially the same as their arguments

for and against a disability leave supplement.

 

I find that there is insufficient support to add a new extended sick leave loan bank benefit.

The Association has neither demonstrated a need for such a benefit, nor any support among the

comparable employers. Moreover, it is significant that the County has already agreed to a costly

new related benefit, the supplemental long-term disability insurance program.

 

EMPLOYEE RIGHTS TO DUE PROCESS

 

The Association proposes that the following provision be added to the Agreement:

 

Article 18, Section 5. Employees are entitled to due process in all

internal investigations and hearings and all rights granted under

Garrity v. New Jersey, 385 U.S. 493 (1967). Such rights include, but are

not limited to, full disclosure of the nature of any complaint, including

the identity of any complainant, and all information necessary to

reasonably understand the allegations which are being investigated.

 

The County opposes this proposal.

 

The Association argues that in asking for full disclosure of any complaint against one of

its employees, including the identity of any complainant, and of all information necessary to

reasonably understand the allegations which are being investigated, it is only requesting rights

which are given to jail inmates by the County. The Association further argues that its proposed

language will clearly put the Department and the Civil Service Commission on notice that they

must bargain any changes to working conditions.

 

The County contends that the proposed protections of employee due process and

"Garrity" rights are unnecessary because they already exist as a matter of law, and are

encompassed by the Collective Bargaining Agreement's just cause provision. The County points

out that the Association has not offered evidence of any problems with the existing practice and

procedures utilized during investigations, or even that any captain has ever been subject to an

internal investigation. The County also questions whether "full disclosure" is potentially

inconsistent with good investigatory practices, such as in an harassment investigation where the

investigator may want to first hear from the employee about his perspective before the

investigator discloses everything.

 

Ms. Young testified that no other County contract has a provision like the one the Union

has proposed. There is no evidence that any of the comparable employers have such a contract

provision.

 

I find that the Association has not provided sufficient justification for its proposed new

language. There is no evidence that there has been any problem or dispute regarding the fair

treatment of captains during internal investigations. In fact, there is no evidence that there has

been any such internal investigations. Captains already have certain rights regarding fair

treatment in the Contract's just cause protections and in Department rules. There is just no

support for the need for additional protections for captains, either by reference to the comparable

employers or to the treatment of other County employees, or by any showing that there are

problems that need to be remedied.

 

AWARD OF THE NEUTRAL CHAIR

 

It is the determination of the Neutral Chair, following consultation with the other Panel

members, that the Collective Bargaining Agreement between Pierce County and the Pierce

County Captains Association shall include the following:

 

I.          There shall be no change to Article 3 regarding mandatory subjects for bargaining.

 

II.        Base wages shall be retroactively increased as follows:

 

Effective January 1,2009 - an increase of5.5 %

Effective January 1,2010 - an increase of2.5%

Effective January 1,2011 - an increase equal to 100% of the bi-monthly Seattle-Tacoma-

Bremerton CPI-U report in July 2009 (for information from June

2010 compared to the 12 months beginning June 2009), but not less than

2.5% or greater than 5.5%.

 

In addition, after five and ten years as a law enforcement captain, employees shall

receive an additional 4% for a total of 8% after ten years. In the alternative, the

law enforcement captains shall receive an additional 4% after 20 and 25 years of

uniformed service with the Department for a total of 8% after 25 years. These

longevity increases shall be retroactive to January 1,2009. There shall be no

duplication of longevity pay benefits. This pay would not be available to any

employees hired prior to December 1, 1982 who are already eligible for longevity

pay.

 

III.       There shall be no change to Section 5.5 regarding uniform and clothing

allowance.

 

IV.       Section 5.10 shall be modified to reflect an increase in Command Duty Officer

Pay from a flat $250 bonus for each week served by a correctional captain as

Command Duty Officer to a flat $275 bonus for each week served in that capacity

by a correctional captain.

 

V.        There shall be no change to Article 5 regarding call out pay for the CID Captain.

 

VI.       There shall be no change to Article 5 regarding educational incentive pay for

captains.

 

VII.     There shall be no change to Article 9 regarding cash out of holiday pay.

 

VIII.    There shall be no change to Article 10 regarding LEOFF II disability leave

supplement.

 

IX.       There shall be no change to Article 10 regarding correctional captain disability

leave supplement.

 

X.        There shall be no change to Article 10 regarding an extended sick leave loan bank.

 

XI.       There shall be no change to Article 18 regarding employee rights to due process.

 

 

 

Sammamish, Washington

 

Dated: May 17, 2010                                                              __________________________

Alan R. Krebs, Neutral Chair

 

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