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