IN THE MATTER OF )
) WA PERC
INTEREST ARBITRATION )
) CASE NO. 18656-I-04-43
BETWEEN THE )
)
CITY OF ANACORTES, WASHINGTON ) OPINION AND DECISION
)
AND THE )
)
ANACORTES POLICE OFFICERS GUILD ) OF ARBITRATOR
)
Re: NEGOTIATIONS OF THE ) GUY M. PARENT
)
2003-2005 )
)
COLLECTIVE BARGAINING AGREEMENT )
)
_____________________________________)
The Anacortes Police Services Guild (the "Guild") and the
City of Anacortes, Washington (the "City") are parties to a
collective bargaining agreement (the "Agreement" or "CBA'' )
which expired on December 31, 2003. The parties began
negotiating a successor agreement in the summer of 2003. In
spite of their efforts, the parties were unable to reach
agreement, even with the assistance of a mediator, on all of the
issues in contention. The mediator eventually submitted thirteen
(13) issues to the Executive Director of the Washington state
Public Employment Relations Commission (PERC) who then certified
the following issues as ripe for interest arbitration:
1. Article 4.4 Municipal Court Overtime
2. Article 4.9 Shift Bidding
3. New Article 7.5 Nonessential Personnel on Holidays
4. Article 9.4 Sick Leave buy back
5. Article 12 Health & Welfare Coverage
6. Article 17.4 Wages - Inc. Sergeant Pay Differential
7. Article 17.3 Payroll Lag
8. Article 17.3 Deferred compensation (eventually
dropped as an issue)
9. Article 18.2 Longevity Pay
10. Article 18.3 Shift Differential
11. Article 18.4 Specialty pay (Detective Clothing)
12. Article 18.5 Education Incentive
13. Article 18.6.2 Detective Clothing Allowance (V. premium
pay)
The parties agreed to waive the statutory provision which
calls for an interest arbitration panel consisting of three
members. Instead, as authorized by WAC 391-55-205(1), the
parties agreed to present the matter to a single arbitrator.
A hearing on this matter of interest arbitration was held on
August 16, 17 and 18, 2005 in the City of Anacortes, Washington
pursuant to the Washington Public Employees Collective
Bargaining Act (the "Act"). The parties were afforded full
opportunity for the examination of witnesses, the introduction
of relevant exhibits (fn:1) and for argument. At the hearing, some four
hundred seventy-two (472) exhibits were offered by the parties
and entered in the record. An official transcript was taken of
the proceedings. Both parties elected to file post-hearing
briefs which were received by the arbitrator on November 5,
2005.
____________________
fn: 1 Reference to exhibits will be CX, GX, or JX signifying City, Guild or Joint Exhibits. Reference to the
transcript will be Tr. followed by the page number.(Att.) will refer to an attachment to an Exhibit.
Foreword:
Along with its post-hearing brief, the Guild's counsel
advised the Arbitrator that it was also filing several
replacement exhibits and prior arbitration awards. He moved to
reopen the record for submission of several supplemental
exhibits that were provided along with the brief. The City
objected to the Guild's presentation of new and additional
information contending that it was untimely and prejudicial to
the City.
The Arbitrator urged the parties to resolve the matter
informally. He also advised them that if their efforts failed
and a request to reopen the record was made by either party for
the purpose of clarifying and arguing certain issues, the
Arbitrator would take the request under advisement.
The arbitrator was subsequently advised the matter had been
discussed and there would be no need to reopen the record. The
record was therefore close on December 10, 2005.
In light of the voluminous evidentiary record and the number
of issues to be addressed, the parties stipulated to a waiver of
the statutory requirement that the arbitrator render a decision
within thirty (30) days of the conclusion of the hearing.
Both parties are proposing a three-year term €or the
successor agreement.
APPEARANCES :
For the Guild: For the City
Christopher J. Gasillas, Esq. Bruce L. Schroeder, Esq.
James M. Cline & Associates Summit Law Group
Attorneys At Law 315 Fifth Ave. So.
1001 Fourth Avenue, Suite 2301 Suite 1000
Seattle, WA 98154 Seattle, WA 98104
James M. Cline, Esq.
James M. Cline & Associates
Attorney At Law
1001 Fourth Avenue, Suite 2301
Seattle, WA 98154
TABLE OF CONTENTS
Applicable Statute ..................................... 5
Backgound .............................................. 6
Conparables ............................................ 7
Municipal Court Overtime .............................. 17
Shift Bidding ......................................... 20
Nonessential Holiday Personnel ........................ 24
Sick Leave Buyback .................................... 27
Health & Welfare ...................................... 35
Wages (Inc . Sergeant Wages) .......................... 49
Payroll Lag ........................................... 71
Longevity ............................................. 76
Shift Differential .................................... 80
Specialty Pay ......................................... 83
Detective Clothing Allowance....... ................... 83
Educational Incentive ................................. 90
Summary of Awards ..................................... 94
APPLICABLE STATUTORY PROVISIONS:
RCW § 41.56.430 Uniformed personnel-Legislative
Declaration. The intent and purpose of chapter 131, Laws of 1973
is to recognize that there exists a public policy in the state
of Washington against strikes by uniformed personnel as a means
of settling their labor disputes; that the uninterrupted and
dedicated service of these classes of employes is vital to the
welfare and public safety of the state of Washington; that to
promote such dedicated and uninterrupted public service there
should exist an effective and adequate alternative means of
settling disputes. (1973 c 131 § 1.)
RCW S 41.56.465(1) Uniformed Personnel--Interest
arbitration panel--Determinations--Factors to be considered.
(1) In making its determination, the panel shall be mindful of
the legislative purpose enumerated in RCW 41.56.430 and, as
additional standards or guidelines to aid it in reaching a
decision, it shall take into consideration the following
factors:
(a) The constitutional and statutory authority of
the employer;
(b) Stipulations of the parties;
(c) (i) For employees listed in RCW 41.56.030(7)(a)
through (d), comparison of the wages, hours, and conditions of
employment of personnel involved in the proceedings with the
wages, hours, and conditions of employment of like personnel of
like employers of similar size on the west coast of the United
States;
(ii) For employees listed in RCW 41.56.030(7)(e)
through (h), comparison of the wages, hours, and conditions of
employment of like personnel involved in the proceedings with
the wages, hours, and conditions of employment of like personnel
of public fire departments of similar size on the west coast of
the United States. However, when an adequate number of
comparable employers exists within the state of Washington,
other west coast employers may not be considered;
(d) The average consumer prices for goods and services,
commonly known as the cost of living;
(e) Changes in any of the circumstances under (a) through
(d) of this subsection during the pendency of the proceedings;
and
(f) Such other factors, not confined to the factors under
(a) through (e) of this subsection, that are normally or
traditionally taken into consideration in the determination
of wages, hours and conditions of employment. For those
employees listed in RCW 41.56.030(7)(a) who are employed by the
governing body of a city or town with a population of less than
fifteen thousand, or a county with a population of less than
seventy thousand, consideration must also be given to regional
differences in the cost of living.
BACKGROUND:
The city of Anacortes lies in Skagit county some eighty.miles
north of Seattle on the western (seaboard) side of 1-5, the
main north-south interstate highway that winds through the
state of Washington. It is a thriving medium-sized city with a
population of approximately 15,7000 and an assessed valuation
of $1,412,486,984.00. Among its many assets, such as nice
location and a mild climate, is that it is also a seaport that
provides ferry service to the popular San Juan Islands and to
Vancouver Island in British Columbia.
The city has four bargaining units: the commissioned police
officers unit, which is a party in this arbitration, the
noncommissioned police unit, also represented by the Guild, the
Firefighters who are represented by IAFF and the non-uniformed
personnel, represented by the Teamsters. The City also has some
200 non-represented employees.
The City of Anacortes has a mayoral form of government
comprised of a Mayor and seven elected Council members. The
Police Department is led by Chief Michael King who has held that
position for eleven years. The bargaining unit covers everyone
below the rank of captain and includes four (4) sergeants and
eighteen (18) commissioned police officers.
In arriving at his decisions and formulating his awards, the
arbitrator has carefully studied and evaluated all of the
evidence and arguments presented in this case, within the
context of the criteria established by WAC 41.56.465.
COMPARABLES :
THE CITY'S POSITION:
The City asserts that arbitrators have regularly accepted
cities that both parties have proposed as the functional
equivalent of a stipulation (City of Burlington, Axon, 2000 at
6-7)(Att. G). In the instant case, the parties have stipulated
to the following nine (9) cities as initial comparables:
Mukilteo
Lake Forest Park
Mountlake Terrace
Mill Creek
Tumwater
Arlington
Port Angeles
Monroe
Sumner
As to the remaining cities advanced by either party as
comparables, the City proposes adding Oak Harbor and Port
Townsend to the above list of agreed-upon comparables using two
widely accepted factors, i.e., the population of a city served
by the police department and, second, the assessed valuation of
the particular locale. The city's views on these two factors are
as follows:
Factor "A" - Population:
The City suggests a bracket with a minimum low end of %50 of
Anacortes' population and assessed valuation, and a high end of
%50 larger than Anacortes' population. This formula, it argues,
has been widely accepted by arbitrators as an appropriate
measure to determine like employers of "similar size" (Whitman
County, Gaunt, 2004) (Att.D); (Walla Walla County, Krebs,
2003)(Att. J); (Intercity Transit, Krebs, 1995) (Att. K); (City
of Vancouver, Beck, 1997)(Att. L)., and produces the following
eleven (11) cities, some larger and some smaller than Anacortes,
that, when taken as a whole, reflect a fair set of jurisdictions
to use as comparables:
Using this 50%/150% band (at least 7,850 but no more than
23,500) of Anacortes' 2005 population of 15,700, the City comes
up with the following set of eleven comparables that produces an
average population very close to that of Anacortes(Cx,B.5):
Oak Harbor 21,720
Mountlake Terrace 20,390
Mukilteo 19,360
Port Angeles 18,640
Monroe 15,920
Anacortes 15,700
Average 15,336
Arlington 14,980
Mill Creek 14,320
Tumwater 12,950
Lake Forest Park 12,730
Sumner 8,940
Port Townsend 8,745
The City contends that the Guild ignores the criteria of RCW
41.56 when it proposes the much larger, more urban and
geographically dissimilar jurisdiction of Camas, Mount Vernon,
Des Moines, Issaquah and Marysville as additional comparables.
The Guild's only justification for this approach, it contends,
is that it feels a 50% down and 100% up band should be used; by
definition, the City adds, such a band would include
jurisdictions that are as much as twice the size of Anacortes.
For this reason, it argues further, the 50% down and 50% up band
adopted by the City is the traditional model as was explained by
Arbitrator Abernathy as follows:
The majority of the panel finds that the City's range
of plus or minus 50 percent to be more reasonable and
logical, while the Guild's plus 100 percent overstates
the influence of larger jurisdictions. The majority of
the panel finds the Guild's range to be more results-
orientated and beyond a common sense meaning of
comparing jurisdictions.
City of Camas at 27-28 (Abernathy, 1996)(Att. M)
The City urges the arbitrator to follow this approach toward
measuring "similar sized" jurisdictions.
FACTOR "B" - ASSESSED VALUATION:
The City's proposed list of comparables also incorporates the
"like employer" factor in relying on an even band of assessed
valuation using the same 50% up and 50% down rule. Other than
population, assessed valuation is the most commonly used factor
to determine comparability status. City of Sea-Tac, at 7-8
(Krebs, 2002)(Att.H).
When negotiations began in mid-2003, Anacortes' most recent
reported assessed valuation was $1,412,486,984. (Cx B.3)
The City relied upon the 2003 data because this was the last
year of the expiring Agreement and that data had been relied
upon during negotiations. Using the 50% up and 50% down formula
results in a lower limit of $706,243,496 and an upper limit of
$2,118,730,476 (Cx B.1). The City's proposed list of eleven (11)
comparables fall within this band. The list includes the nine
jurisdictions agreed to by the parties, as well as Oak Harbor
and Port Townsend.
The City contends further that the Guild's list of
comparables ignores the "like employer'' factor by including
jurisdictions such as Issaquah which has an assessed valuation
of $3,026,104,987, almost double that of Anacortes. As noted by
arbitrator Lankford, " [c]ertainly any proposed comparable which
is strikingly dissimilar in respect to assessed valuation...is
not likely to be given much weight." City of Mukilteo, (Lankford,
2002, at 4(Att.N), cited in Whitman County, at 8 (Gaunt, 2004)
(Att. I). Arbitrator Gaunt also rejected a union's proposals to
use jurisdictions with more than doubled the assessed valuation,
noting that "I have no interest in arbitrations that use
comparators with so large a disparity." City of Port Angeles, at
9 (Gaunt, 2004) (Att. 0). The Guild, the City asserts, compounds
the problem created by its results-oriented approach to defining
comparability by including a third factor: assessed valuation
per capita. There is no arbitral support for adding this
criteria. As noted by Arbitrator Wilkinson, the assessed
valuation and population model adopted by the City is well
established:
There are so many arbitration awards that considered
only population and assessed valuation as a measure of
size that no citation is needed. These citations have
spanned decades without correction by the Legislature
or the courts. Thus, I emphasize that it is both usual
and appropriate to confine one's inquiry to the
population and assessed valuation indicators (with
consideration also given to geographic proximity), as
is seen from many interest arbitration adjudications.
City of Camas, (Wilkinson,2003) (Att.P)
The City also contends that the Guild's proposal to add
Issaquah and Des Moines also inappropriately favors more urban
areas. Both cities are in the heart of the Central Puget Sound
metropolitan area. Anacortes is located in Skagit County, a
predominantly rural area.(Cx.B.14). Skagit County, like most
Washington rural communities, has not experienced the same rate
and degree of growth as the more urban areas. Issaquah and Des
moines are large urban growth areas due to their location in the
Central Puget Sound region.(Cx. B.14). As noted in the City's
exhibits, the difference between the rural areas like Anacortes
and more urban areas like Issaquah and Des Moines is staggering.
(CXS, B.14-B.18).
The Central Puget Sound metropolitan area has experienced
substantial growth in the last several years, particularly due
to Microsoft and other high tech companies. This growth
translates into lower unemployment rates for urban areas
compared to more rural areas. (Cx.B.14). It also translates into
higher wages, personal income and per capita income in urban as
compared to rural areas. Id. For instance, the average wage for
rural Washington areas for the last two decades has remained
substantially less than the average wage in the urban areas.
(Cxs. B.15-B.16). Per capita income has also followed this trend
with the per capita income for rural Washington counties being
significantly less (almost $10,000) than urban counties.
(Bx.B.17). Given these significant differences, the attempted
inclusion of Issaquah and Des Moines is not appropriate.
For all of these reasons, the City requests that the
Arbitrator reject the Guild's result-oriented approach and adopt
the City's following proposed list of comparables which include
the nine ( 9 ) jurisdictions agreed to by the parties (emphasis.
by City) and the "like employer of similar size" jurisdictions
of Oak Harbor and Port Townsend:
Mukilteo
Lake Forest Park
Mountlake Terrace
Mill Creek
Tumwater
Arlington
Port Angeles
Monroe
Sumner
Port Townsend
Oak Harbor
THE GUILD'S POSITION:
There is no dispute between the parties that comparability is
of overriding importance. The parties should not through
posturing be able to achieve a compromise result not supported
by the statutory interest arbitration factors. The statute and
prior arbitration decisions provide guidance in the task of
defining comparability. It asserts that there is no dispute
between the parties that population and assessed valuation
should be used to determine comparability. Nevertheless, the
Guild contends that assessed valuation per capita should also be
considered as it is an excellent measure of the City's
resources to pay for officer compensation.
The selection range proposed by the Guild is more reasonable
and better supported by sound arbitration precedent which
indicates that the 2 to 1 range in both directions better
captures comparability. The Guild contends that its wage
proposal is well supported by comparables and evidences a large
wage gap between those comparables and those of the City. The
City, it further contends, attempts to minimize the extent of
this gap by artificially comparing 4-year officers instead of
the generally recognized point of comparison - the 5-year "top
step" officer. The City's proposal would drop the officers even
further behind the comparables.
The City's "internal equity"-based argument should be
rejected. The relevant internal equity factor concerns the other
bargaining unit with similar collective bargaining rights and
that bargaining unit - the firefighters - received a raise equal
to the Guild proposal; besides, it adds, the internal equity has
been a minimal or non-factor in arbitration cases, where, as
here, the employer has a healthy capacity. The state and
regional economy are strong, creating an influx of tax revenues.
The City budget indicates very healthy reserves.
In sum, the arbitrator's award should be based on a
principled application of the statute rather than a compromise
between each party's position. In this case, the Guild's
proposed comparables should be adopted by the arbitrator based
upon a reasoned assessment of the evidence with an application
of the statutory criteria set out in RCW 41.56.465(1), supra.
As was noted by Arbitrator Smith-Gangle in Whatcom County:
The Act does not give guidance to the arbitrator as to
the relative weight that should be given to the factors.
Therefore, the arbitrator has discretion as to how to
weight the various factors and the evidence supporting
them. This not an exact science. However, it is incumbent
on the arbitrator to use principled reasoning in drawing
conclusions.
Whatcom County (Deputy Sheriffs)(Smith-Gangle, 2001)
Toward that end, prior arbitration decisions, especially
under the Washington statute, are considered persuasive, yet non
binding, precedent in applying these statutory factors. As
Arbitrator Smith-Gangle then went on to note in the same Whatcom
County decision:
There has been considerable case authority in
Washington, by which various distinguished labor
arbitrators have analyzed and applied the statutory
criteria. Each of the parties referenced some of
of those earlier awards in their briefs. To the
extent that the reasoning of those arbitrators is
relevant to facts of this matter, the arbitrator
will refer to those cases. Id.
In this case as well, the Guild cites prior arbitral
precedent as an aid to developing a reasonable application of
the statutory factors to the issues presented,
Comparability, the Guild asserts, is of overriding importance
in an interest arbitration proceeding. One explanation for the
overwhelming reliance on comparability data is that such a
comparison allows a "presumptive test to the fairness of a
wage." (fn:2)
____________________
fn: 2 City of Moses lake (Fire) (Snow, 1991) at 5 (quoting Fies, Principles of Wage Settlement, 339)(1924)
(Appendix 7)
As Arbitrator Snow noted: "The purpose of comparisons is to
provide a rational standard and not to create a method for
splitting the difference in interest arbitration, The parties do
not seek the weighted average of an arbitrator's notion of
equity, but, rather, a principled basis for resolving their
impasse." (fn:3) Because these comparisons carry an aura of fairness,
they are more likely to produce a result acceptable to those
affected." (fn:4)
____________________
fn:3 City Of Moses Lake, supra at 6.
fn:4 Whatcom County (Police) (Snow, 1986) at 6-8
The Guild contends that its method for selecting comparables
is superior to the method advocated by the City, and demographic
factors justify the Guild's list of comparables. The collective
bargaining statute specifically mandates that comparisons be
based on "like personnel of like employers of similar size." (fn:5)
Both the Guild and the City agree that population and assessed
valuation should be considered in determining an appropriate
list of comparators based in this statutory mandate. On key
difference between the parties is over whether or not to use
assessed valuation on a per capita basis.
_____________________
fn:5 RCW 41.56.465(1)(c)( i)
The Guild contends assessed valuation per capita should be
applied as an excellent measure of tax base. The analysis
conducted by the Guild measuring wages against assessed
valuation per capita indicates that this measurement criterion
is highly predictive of police wage rates. On this point, the
Guild draws the arbitrator's attention to Gx. 19. The City of
Anacortes has wonderful parks and the city amenities make it a
great place to live. But city subsidies of these amenities
should not be made, in the Guild's view, at the expense of a
fair and competitive package for the City's public safety
personnel.
As to the "range" factor, the Guild argues that the one to
two range it advocates should be adopted because it is a better
measure of what constitutes "similarity in size". The key to
assessing the value of this range is an understanding what is
being utilized is a r a t i o of two to one in both directions. The
notion of ratio was found useful by Arbitrator Janet Gaunt when
she approved of this approach when establishing a range:
In this regard, the Chair finds the reasoning of Union
expert David Knowles regarding the law of large numbers,
i.e., that a decrease in numeric amount has a much larger
impact than an increase in the same numeric amount (Tr.
1369). It stand to reason that if a department 50% the
size of Bellevue is deemed similar, then a department to
which Bellevue stands in the same ratio should also be
deemed similar on the upper end.(fn:6)
_________________
(fn:6) City of Bellevue(Fire)(Gaunt 1988) at 15
The same range has also been approved by other arbitrators.(fn:7)
Perhaps the best statement discussing this issue is set forth in
Arbitrator Wilkinson's decision in the City of Pascopolice
arbitration:
__________________
(fn:7) See e.g.,City of Yakima (Police) (Abernathy 1980) at 14; City of Pullman (Police)(Lumle1y9 81) at 10;
City of Pasco (Police)(Wilkinson 1994) at 15-1 6
In my view, the screen utilized is the one needed to
produce an adequate number of (usually instate or
local labor market) comparators. The objective, in
addition to a sufficient number, is balance. One does
not 'fine tune' the screen for the sole purpose of
adding or omitting a desirable or undesirable (in
terms of pay) jurisdiction. In questionable cases,
one should err on the side of inclusion. The final
list should be balanced in tenns of population,
wealth, degree of rural isolation and the like. The
best argument for using the Association-preferred
approach (minus 50% to plus 100%) for the population
screen is that in almost all cases, there are fewer
large jurisdictions from which to obtain population
balance. On the other hand, the debate is academic
when the balance can be obtained without that
approach.(fn:8)
____________________
fn:8 City of Pasco, Supra at 16 (emphasis added by Guild)
The Guild further contends that the City's own comparability
charts evidence a flaw in their methodology given Anacortes'
stance as contrasted against the City-proposed jurisdictions.
Under the assessed valuation screen, the second of only two
screens used by the City to select comparables, Anacortes finds
itself second from the top in size; only the city of Mukilteo is
larger (Cx B.6). In its brief, the Guild proposed the following
jurisdictions, based on its own screens, as proper comparables
for consideration by the arbitrator (Note: the following list
includes both the previously agreed-to nine (9) common
comparables plus the Guild's proposed addition of six (6) for a
total of fifteen (15)):
ARLINGTON
BONNEY LAKE
CAMAS
DES MOINES
ISSAQUAH
LAKE FOREST PARK
MARYSVILLE
MILL CREEK
MONROE
MOUNT VERNON
MOUNTLAKE TERRACE
MUKILTEO
PORT ANGELES
SUMNER
TUMWATER
DISCUSSION and FINDINGS
Comparables:
At the outset, the arbitrator must state that the size of the
record in this case is so voluminous as to make it impractical
to address each and every piece of evidence submitted by the
parties, but, on every one of the issues, careful consideration
was given to the evidence and argument presented. In developing
his award , the arbitrator will keep in mind the applicable
statutory factors, i.e., AWC 41.56.465.
My study of prior arbitral decisions cited by both parties
reveals that the nine (9) City and Guild common comparables can
reasonably be accepted as an adequate number of jurisdictions
for the arbitrator to consider as comparators in meeting his
obligation to abide by applicable statutory criteria.(fn:9) The
population figures of these jurisdictions produce an average of
15,359 as compared to Anacortes' population of 15,700. In
addition, the geographical location of those common proposed
comparators is well within the bounds of the intent of the
applicable statute.(fn:10)
___________________
fn: 9 RCW 41. 56.465
fn:10 Id.
The Guild's proposal of six (6) additional jurisdictions to
the common nine (9) would, if adopted by the arbitrator, create
an unnecessarily large list of comparables. The goal here is to
develop a balanced and manageable set of comparators that a) are
reasonably close in size to Anacortes, b) are in acceptable
geographic proximity and c) show some parity in wealth. The
original nine (9) common jurisdictions cited, supra, meet all
of these goals and the arbitrator, after considering the
assertions and arguments of both parties, determines that the
following common jurisdictions should be used as comparators:
Population ASSESSED VALUATION
(MILLIONS)
Mountlake Terrace 20,390 $1,520,597,111
Mukilteo 19,360 $2,192,201,240
Port Angeles 18,640 $1,064,490,502
Anacortes 15,920 $ 957,406,490
Average 15,700 $1,661,054,153
Arlington 15,359 $1,448,948,433
Mill Creek 14,980 $1,161,206,928
Tumwater 14,320 $1,421,358,442
Lake Forest Park 12,950 $1,166,331,973
Sumner 12,730 $1,618,292,987
Monroe 8,940 $ 938,650,230
ISSUES:
At the outset, the arbitrator will state that he heartily
embraces the proposition, expressed by many other interest
arbitrators, that the party proposing a change bears the burden
of justifying it.
The amount of evidence submitted by the parties in this
case was nothing less than overwhelming. This is not to infer
that all was found to be particularly novel or relevant, but
every issue , while elaborately presented , was appropriately
addressed by each party in their respective post-hearing brief.
In addressing each issue, the arbitrator has given due
consideration to the assertions, contentions, arguments and
evidence submitted by both parties within the context of
applicable statutory criteria.
ISSUE 1. - Municipal Court Overtime
Article 4.4 of the Agreement states the following:
4.4 Any Employee called to work after completing their
regularly assigned shift, or attending court on their
off-duty time, shall be paid a minimum of three hours
at one and one-half time their regular rate of pay.
The City is proposing to amend that language as follows:
4.4 any employee called to work after completing their
regularly assigned shift, or attending court as assigned
on their off-duty time, shall be paid a minimum of three
hours at one and one half times their regular rate of
pay, with the exception of municiml court infraction
cases which shall be paid one and one-half hours at
one and one-half times their reaular rate of pay for
those times when an officer's presence is not required
by the department or the court. (CX 1.1) (emphasis
added).
The City proposes, basically, to modify the callback
provisions of the Agreement for municipal court infraction cases
where a simple affidavit can be submitted in lieu of live
testimony. Where an officer is not requested to be present by
the citizen challenging the infraction or requested by an
attorney prosecuting the case, the bC City contends that it
would be sufficient for the officer to submit an affidavit
rather than provide live testimony. It bases this contention
on the following provision of RCW 46.63.090 which reads as
follows:
Statute Governing Affidavits in lieu of
In-Court Appearances
...( 2) The court may consider the notice of traffic
infraction and any other written report made under
oath submitted by the officer who issued the notice
or whose written statement was the basis for the
issuance of the notice in lieu of the officer's
personal appearance at the hearing. The person named
in the notice may subpoena witnesses, including the
officer, and has the right to present evidence and
examine witness present in court. (fn:11)
(emphasis added)
____________________
fn:11 Cx 1.3
The City explains that this proposal is designed to provide
an alternative for officers to do this rather than to incur
overtime by unnecessarily attending municipal court. It further
points out that the proposal provides that unless the officer's
presence is required, the officer will not be eligible for this
call back premium.(fn:12) All other forms of call back pay are not
affected by this proposal.(fn:13)
____________________
fn:12 Cx 1.2
fn:13 Tr. III King 119-120
The City asserts the Guild did not introduce any evidence or
testimony regarding their opposition to this proposal. Nor is
there any basis it adds, for opposing it. Officers who are
required to appear in court will continue to receive the
guaranteed three hour minimum. On the other hand, the City
should not be required to continue to pay this three hour
minimum where an officer's testimony is not required. As the
City faces increasing costs, paying overtime unnecessarily
obviously begs for correction.
The Guild maintains that the City is attempting to modify
the court overtime section in two ways: first, it seeks to cut
the guaranteed minimum for court time pay from current amount of
three hours at the overtime rate to just one and one-half hours.
The City is also proposing new language designed to encourage
officers to submit affidavits in lieu of live testimony in
municipal court cases. The Guild argues that the proposed
language modification is in no way necessary to meet the the
stated goal of encouraging the submissions of affidavits, and
the attempt to cut the guaranteed minimum pay at the overtime
rate is not supported by comparability data. It points to the
fact that twelve of its suggested fifteen comparables provide
for a guarantee of three (3) hours at overtime rates for
mandated court appearances.
DISCUSSION:
The arbitrator finds unpersuasive the City's argument that
its proposed language change is necessary. First, this issue
does not apply to the first provision of this article which
addresses a callback instance of an officer who has completed
his/her shift. Secondly, as the City contends, the new language
would not affect the current three-hour minimum guarantee to
officers who are required to appear in any court, including
municipal court, which could occur, given the language of RCW
46.63.090, supra. The Guild's contention that the proposed
language change is unnecessary is a valid one. From the City's
argument, assertions and contentions, the arbitrator must
conclude that the purpose of its proposal is to avoid the
payment of a three-hour minimum pay guarantee at overtime rates
to an officer who is not on duty and who may be required to
provide an affidavit. This sort of situation is not clearly
addressed in the current language of Article 4.4. If the
arbitrator's conclusion is in error, then the City's position is
somewhat baffling given the fact that, if an off-duty officer's
affidavit is required, the City could direct (emphasis added)
the officer, as the Guild contends the City has a right to do,
to provide the affidavit while the officer is on duty thereby
eliminating instances of payments of unnecessary overtime.(fn:14)
__________________
fn: 14 Guild brief, 87)
Based on the evidence and the arguments presented, the
arbitrator finds that the City has failed to provide a
compelling reason to change the existing language of Article 4.4
and therefor it failed to carry its burden of proof on this
issue.
AWARD:
The language of Article 4.4 shall remain unchanged.
ISSUE N0.2 - SHIFT BIDDING
BACKGROUND:
Prior to the 2001-2003 Agreement, police officers did not
have the right to bid on shifts. As a result of negotiations
over the 2001-2003 successor agreement, the concept of shift
bidding being driven primarily by seniority was agreed to and,
subsequently, language in Article 4.9, which addresses that
issue was tentatively agreed to and was meant(emphasis added) to
read as follows:
Each shift rotation shall be of two months in
duration. No employee may bid for more than two
rotations on the same shift in one calendar year.
The first rotation of a new calendar year may not
be the third rotation
The intent of that new language, agreed to in draft form by
Police Chief Mike King, negotiating for the City, and Sgt. Lou
D'Amelio and Officer Hansen negotiating for the Guild, was to a)
establish shift rotations of two calendar months in duration,
b) to allow each police officer three rotations in the same year
providing all three selected rotations are not on the same shift
(emphasis added) and, c) the first rotation in a year may not be
the third consecutive rotation on the same shift. A problem
occurred when the Guild negotiators presented the entire
tentative agreement to its membership for ratification. It was
accepted. Then, an error in the proposed Shift Bidding language
was discovered: instead of the language previously agreed to in
clause 4.9(supra), the language presented to the Guild
membership, and accepted, read as follows:
Each shift rotation will be two months in duration.
No employee may bid for more than two consecutive
(emphasis by the arbitrator) rotations on the same
shift. The first rotation of a new calendar year may
not be the third consecutive rotation on the same shift.
This language, voted on and accepted by the Guild‘s
membership, obviously permits an officer to bid on three
rotations on the same shift in the same year providing no more
than two of them are consecutive. This language only served to
perpetuate the very situation the parties had attempted to
correct through their negotiations. Following the ratification
of the tentative agreement, Chief King and Sgt. D‘Amelio
recognized that an error had occurred in the typing up of the
Shift Bidding proposal and also that it was too late correct it.
Chief King testified that he understood the precarious situation
in which both he and Sgt. D’Amelio had been thrust: either
correct the language of clause 4.9 and present it to the Guild
membership for another vote and risk a rejection of the entire
tentative agreement, or, as Capt. King suggested, leave the
mistake alone for the length of the new agreement with an
understanding that it would be corrected during the next round
of negotiations in 2003.(fn:15) Sgt. D‘Amelio testified that he
initially did not have a problem with that solution, but by the
time negotiations began in 2003, the Guild members had become
more than slightly enamored with the 4.9 Shift Bidding clause,
and, according to Sgt, D’Amelio, the membership was not willing
to give it up.(fn:16)
In its brief, the Guild vigorously defends its position by
arguing that, although clerical and editing errors were made the
City cannot now rely on those errors in its attempt to convince
the arbitrator that he should overlook the Guild membership's
ratification of the agreement.
The City urges The Arbitrator to adopt its proposal for two
reasons. First it is undisputed that the relevant language was a
"mistake" and it should have expressly limited an officer's
ability to bid all three of his/her rotations on the same shift.
For the Guild to now renege on the agreement reached at the
bargaining table and to request that the Arbitrator condone its
conduct by rejecting the City's proposal is inappropriate and
runs afoul of the good faith bargaining criteria of RCW 41.56.
As a collateral issue to the shift bidding clause addressed,
supra, the Guild has proposed the following additional language
to that clause:
Officers may switch a two month rotation with each
other, with approval of the City.(fn: 17)
__________________
fn:17 Cx A.6, p.3
The Guild contends that, although shift trades have been
granted in the past, some have also been denied for what was
perceived by the requesting officers as unfounded reasons.
In its brief the Guild asserts that shift trades are not a
foreign concept to the Anacortes Police Department and they have
been allowed in the past. It further asserts that the purpose of
its proposal is "...to build into the contract a more formal and
grievable recognition that officers have the right to seek such
trades." (Gx. Brief, p. 81).
In its brief, the City contends that the Guild, as the
moving party on this issue, bears the burden of persuasion. City
of Bellevue,(Gaunt,l988)(Att.Q). The Guild has not sustained
its burden by demonstrating a compelling need to change the
status quo by inserting new language into the parties'
Agreement.
In support of its contentions, the City cites the testimony
of Guild witness D'Amelio who testified as follows under direct
examination: "...he (Chief King) has always been approachable."
(Tr.111, 163). Under cross-examination, witness D'Amelio further
testified as follows:
"Q. ... And I'm just trying to get a sense of what he
(King) is giving up if your language were to come
in, if(sic) he doesn't have the power to deny?
A. I'm in agreement with you that he does have that
power to do that now, I'm just asking that he
formally write it down."(Tr.III, 166)
DISCUSSION AND FINDINGS
The suggestion of Chief Mike King to table the issue until
the next round of bargaining, and Sgt. D'Amelio's concurrence
with that idea, certainly appears to have been a good compromise
at the time. Obviously, what was not anticipated was the
membership's apparent total acceptance of the new shift bidding
provisions, as written, which led to a stalemate on the issue
during the 2003 negotiations.
It is truly unfortunate that incidents of the sort that led to
this controversy sometimes occur, more often than not as a
result of the trying and pressure-laden final moments of a
collective bargaining endeavor. In the instant case, it is all
the more unfortunate because it involves representatives of both
sides(King and D'Amelio) who, judging from the record, had
developed a bargaining relationship built on trust and
professionalism.
A thorough review of record evidence regarding this issue
causes the arbitrator to conclude that it would be improper for
him to disturb the status quo of the 4.9 clause language. To do
so would amount to an usurpation of Guild members' collective
bargaining rights and, in addition, would severely conflict
with the "good faith bargaining'' spirit of WRC 41.56. This
issue, in my opinion, is best left to the parties' next round of
negotiations for another attempt at reaching a mutually-
acceptable resolution.
The city argues persuasively that the Guild has failed to
demonstrate a compelling need to add its proposed language to
clause 4.9 in an effort to formalize the process of requesting
shift trades. No specific instance was put forward by the Guild
that would indicate bias or some form of discrimination on the
part of Chief King in denying any shift trade request. No
allegation has been made that problems with the existing
procedure exist other than some officers feeling disappointed by
the City's occasional denial of a shift trade request, a quite
natural reaction. In its brief, the Guild appears to infer that
there has been some question, some uncertainty, on the part of
the City as to whether or not police officers have the right to
request a shift trade. If that is, in fact, the the Guild's
concern, it is without basis. I find no evidence of the City
contending that police officers do not have the right to make a
request (emphasis added) of anything. As was stated, supra, the
Guild's asserted purpose of adding its proposed language is "to
build into the contract a more formal and grievable recognition
that officers have the right to seek such trades.'' (Guild Brief
at 81). I find the Agreement devoid of any inference that police
officers do not have such a right. The Guild's proposal
obviously implies that it is seeks the right to grieve the
denial of a requested shift trade. Such a right is guaranteed
by the provisions of Article 8 - Grievance of the Agreement. I
therefore find that Guild's proposed language to be without
proven purpose.
AWARD:
The City's proposal to change the current language of clause
4.9 is rejected, as is the Guild's proposed language.
ISSUE N0.3 - ARTICLE 7 - NONESSENTIAL PERSONNEL
Under Article 7 - of the Agreement, the City proposes a new
clause,i.e., 7.5 - Nonessential Personnel Assignment on
Holidays. It would read as follows:
7.5 Management maintains the right to determine
the number of nonessential personnel assigned to
work on holidays.
According to the City, the new language is intended to
prov de the Police Department with the authority to determine
the number of nonessential personnel to work on a holiday. It
would give the Department more flexibility to staff its
operations on holidays based on actual need and productivity.
The proposal would affect only the crime prevention officers,
detectives and DARE officers- Patrol officers are considered
"essential personnel" and, according to the City, would not be
affected by the City's proposal. Holidays for nonessential
personnel, such as DARE officers, detectives and crime
prevention officers, are not productive work days because
administrations and offices with which this type of personnel
must interact, such as schools and the judicial system, are not
open on holidays. In addition, detectives cannot function
efficiently on recognized holidays because members of the public
with whom they must interact are not available. The City asserts
that it needs the flexibility to have nonessential employees
take the holiday off with pay instead of working on that day.
In support of its proposal and contentions, the City draws
the arbitrator's attention to Cx. 3.3 which is a graph depicting
the City's salary expenditures during the years 2002,2003 and
2004 for nonessential personnel working on holidays. The graph
shows the following:
Year: 2002 2003 204
Expenditures: $1,375. $4,899. $8,729.
By allowing the City to schedule nonessential personnel to
observe the holiday rather than report for work, the City would
stand to save over $8,000.00 a year on overtime costs. The
affected employees would still receive holiday pay and the
proposal would not affect the majority of the bargaining unit,
such as patrol officers, which constitutes essential personnel.
The Guild contends the City proposal should not be
implemented for three reasons. First, the proposal fails to
define the meaning of "nonessential" personnel; second, it
attempts to insert into the Agreement language that is found in
few other comparable agencies and third, it is unnecessary
language because it is redundant to the inherent right
management already has to determine the level of nonessential
staffing on holidays.
Due to the manner in which the proposal was drafted by the
City, the Guild contends further that it is patently ambiguous
as to the meaning of "nonessential personnel". On its face, the
proposal makes it appear that City management has the right to
determine who qualifies as nonessential personnel for a holiday.
This could then include a patrol officer who may be regularly
scheduled to work on the holiday. If the officer is sent home
because the City determines that it only needs two patrol
officers on a given holiday instead of three, then that officer
loses out his/her holiday premium for that day because of the
City's designation of the officer's status. That, the Guild
asserts, is not acceptable.
The City bases its assertion that the proposed language would
only apply to detectives on the testimony of Chief King and the
City's exhibits, but, regardless of the alleged intent, that is
not how the language reads. As drafted, the proposed language
could be interpreted to mean that any bargaining unit member
could be deemed "nonessential" by the City and sent home on a
holiday. That possibility is simply not justifiable according to
the Guild.
Such vague Agreement language also lacks support from
comparable agreements. Of the nineteen comparables originally
proposed by the parties, only two have any type of language
regarding scheduling on holidays: Mountlake Terrace and Skagit.(fn:18)
The lack of language, in the other suggested comparables
agreements, analogous to that which the City is proposing,
supports the Guild's other contention which is that the
determination of staffing needs of nonessential personnel on
holidays is an inherent management right that does not require
explicit language in the Agreement.
__________________
fn: 18 Gx.241
The Guild requests that the City's proposed language be
rejected.
DISCUSSION:
Based on the figures shown in Cx 3.3, the potential salary
costs savings to the City by a closer monitoring of holiday
staffing is rather impressive. From the testimony of witness
King, the Guild's expressed concern that "nonessential"
personnel might somehow encompass uniformed patrol officers
appears to be without factual basis. First, witness King clearly
stated under both direct and cross examination that
"nonessential" personnel means detectives, DARE and crime
investigation personnel.(fn:19) He further testified that
"nonessential" means non-patrol personnel. (fn:20)
_________________
fn:19 TR III, 136-138
fn:20 TR III 140-141
The arbitrator is of the opinion that the Guild's concerns
are not well founded.
AWARD:
Based on the evidence of record, I find that the City's
proposal has merit from both cost savings and more effective
personnel management points of view. But I am of the opinion
that the proposed new language would be more precise if it
0 accurately reflected the view of the City as expressed by
witness King in his testimony. Therefore, the Arbitrator awards
that the following new Section 7.5 language be made part of the
Agreement:
7.5 Management maintains the right to determine the
number of nonessential personnel to work on holidays.
Nonessential personnel is hereby defined as detectives,
DARE and crime investigation personnel.
ISSUE NO-4 - Article 9 - SICK LEAVE BUY BACK
While Article 9 of the current Agreement provides for the
accumulation of sick leave, Section 9.4 states:
"Sick leave cannot be taken before it is actually
accrued and there shall be no sick leave buy back."
The Guild's proposed change to the 9.4 clause reads as
follows:
"Sick leave cannot be taken before it is actually
accrued and sick leave buy back will be instituted.
Upon retirement, each LEOFF I1 bargaining unit
employee shall receive up to 360 hours of their
sick leave as pay at their full hourly rate
calculated as follows:(years of employment X 12)
divided by (percentage of their existing sick
leave bank as compared to 1440 hours.)
The Guild first asserts that a well-crafted sick leave
incentive programs can be of help in reducing a jurisdiction's
long-term costs. A high incident rate of sick leave can be quite
expensive for police departments due to their 24-7 schedule of
operations because they not only must pay for an unscheduled
absence, it must also back fill the absent employee, oftentimes
on an overtime basis. On the other hand, if an employee has an
incentive to take as little sick leave as possible in order to
build up a bank that could be cashed out at some point in time,
it would reduce the number of sick days for most employees, and,
in turn, greatly reduce the associated costs to the employer.
A strong majority (84%) of comparable jurisdictions
originally offered by the Guild and the City support some sort
of sick leave incentive programs and of those, ten (10) have
programs in place that provide some form of cash compensation
for unused sick leave upon retirement, similar to the one
proposed by the Guild.
The Guild's proposal of a 360-hour cap on the amount of sick
leave that can be cashed out at retirement is far below the
average of those jurisdictions that allow a cash-out upon
retirement. Three of the ten jurisdictions have no explicit
capped amount within the buy back program itself. The average
amount for the other seven of the cities is approximately 600
hours, far above the 360 hours proposed by the Guild.
The importance of comparability in determining the
appropriateness of a sick leave buy back program has been
validated by past arbitrators. For example, a new sick leave
Payson program was awarded by Arbitrator Axon in City of Everett
based on his findings that "the City's comparables provide
evidence that some form of cash out is a benefit enjoyed by
police officers employed in the comparable west coast city."(fn:21)
Thus, the overriding importance of comparability has been
recognized by previous arbitrators even in the area of sick
leave buy back programs.
__________________
fn:21 City of Everett(Police)(Axon, 1997)
Considering internal factors of comparison here, the Guild
asserts that it is also important to note that the Anacortes
firefighters actually have a sick leave buy back program. The
City's attempt to downplay this fact by arguing the firefighters
have different leave accrual rates than do Guild members is
nonsensical. The Guild argues that there is no logical nexus in
the City's argument that, because the firefighters accrue sick
leave at a different rate, the Guild members should not,
therefor, have a sick leave buy back program. Whatever the
differences between the firefighters and the Guild may be, the
fact of the matter is that they have a buy back program and most
of the Guild's comparables have such a program. In that light,
there is strong basis for awarding the Guild's proposed program
in this case.
The City argues that the Guild's sick leave buy back
proposal would destroy internal parity; it bases this argument
on the fact that, with the single exception the firefighters
unit, no other employee group of the City has a sick leave buy
back benefit. (Cx4.3). Put another way, 93.4% of the City'
employees do not have a sick leave buy back. Id.; Schuh, 11,
121. The Guild has provided no persuasive reasons why the
officers should be treated any differently than the vast
majority of city employees for purposes of a sick leave buy back
program.
The Guild, it asserts, relies on the sick leave buy back
programs purportedly offered in other jurisdictions to suggest
one should be added here. However, as numerous arbitrators have
noted, internal parity is often more important than
comparability with other jurisdiction when it comes to benefits
as compared to wages. See, e.g., Clark County, at 84 (Axon,1996)
(Att. R) In that case, Arbitrator Axon concurred with the County
that all County employees should be given identical treatment
when it comes to health care benefits. Here, maintaining the
status quo places the Guild in the same position as the
majority of the City's 200 employees who do not have a sick
leave buyback program.
Rather than be substantially treated like all of the other
City employees with respect to this benefit, the Guild argues
that it should receive the same benefit provided to the
firefighter unit. The guild's effort to place itself in this
minority group is misplaced due to the very different and uniqi
situation of the firefighters. For example, the firefighters
work more than any other city group, with 2912 hours a year
compared to the 2080 hours for the other City employees,
including police officers. In recognition of their significant
number of scheduled work hours, the firefighters receive twelve
(12) hours of sick leave each month as compared to the agreedupon
eight (8) hours for Guild members, as well as for all other
city employees. (fn:22)
_________________
fn:22 Tr. II, 98;Schuh, II, 121.
The Guild bargaining unit is also different from the
firefighter unit in that the Guild members receive a social
security benefit that the firefighters do not receive. This
translates into an additional 6.2% of this bargaining unit's
base wages that is being paid by the City.(fn:23) The Guild's proposal
ignores this benefit, and it would amount to an additional
$35,000.00 over this three year contract on top of social
security benefits this bargaining unit receive.(fn: 24) For all of
these reasons, the City requests that the Arbitrator reject the
Guild's proposal and maintain the status quo.
__________________
fn:23 Tr. II, 98.
fn:24 CX.6.6.5.
DISCUSSION:
The basis for the City arguing against granting a sick leave
buyback benefit is that no other group of city employees, other
than the Firefighters, have such a benefit and the only reasons
the Firefighters have it is that a) they work more than any
other group of city employees and their schedule causes them to
work some 2912 hours a year compared to 2080 hours a years and
in recognition of that schedule they accumulate twelve (12)
hours of sick leave per month instead the eight (8) hours earned
by Guild members and b) Firefighters do not receive a social
security benefit. The City contends the Guild's proposal, if
accepted, would serve to destroy internal parity.
The arbitrator attempted, but in vain, to locate the cases of
"numerous arbitrators who have stated that internal parity is
often more important than comparability with other
jurisdictions" as asserted by the City. In support of that
statement, the City refers the arbitrator only to one prior
arbitration, i.e., the Clark County decision, at 84 (Axon,1996).
The City accurately states that in that decision, Arbitrator
Axon concurred with the County that all County employees should
be given identical treatment when it comes to health care
benefits.
My reading of Arbitrator Axon's decision indicates that it
is important here to put his findings in the proper context. In
that case, Arbitrator Axon was addressing an issue involving
"Benefits/Insurance". It appears that all county employee groups
and non-represented employees were participating in the Blue
Cross Indemnity Plan 100/80 coverage with standard "buy-up"
rates for every participant.
The County's proposal was to keep in force the then-current
"buy-up" costs for the third year of the contract. The Guild
proposed a reopener on the "buy-up" rates for the third year.
Arbitrator Axon rejected the Guilds proposal and in his
"Discussion and Findings" stated:
"The Arbitrator concurs with the County that the formula
which is applicable to all other employee groups and
non-represented employees who are still participating
in the Blue Cross 100/80 plan should be identical."
In his Clark County case, Arbitrator Axon was dealing with a
controversy involving a health benefit plan in which
participation was voluntary, and with "buy-up" rates that
applied equally to all those enrolled. His finding on that issue
was appropriate as was his award.
In the instant case, the City's contention that the Guild's
proposal would "destroy the internal parity" is without merit.
No internal parity exists to begin with. For its own reasons,
the City saw fit to negotiate a sick leave buy back provision in
its negotiations with the Firefighters. Since it does not have
to negotiate with its non-represented employees, it obviously
has felt that such a benefit is not called for, even if doing so
would have, in fact, created some sort of internal parity. The
Firefighters were able to negotiate a sick leave buy out plan
for themselves. The City's claim that the Guild should not be
permitted to reach for same benefit borders on the
incomprehensible. Because the issue before us deals with a
demand for some sort of cash pay out and not the basic issue of
how many sick leave hours may be accumulated, it is clearly not
the type of controversy disposed of by Arbitrator Axon in Clark
County, supra. Here, we have a proposed monetary benefit at
stake.
In support of its position, the Guild refers the arbitrator
to a prior arbitration also involving Arbitrator Axon. City of
Everett(Police)(Axon, 1997). Therein, the Arbitrator addresses
an issue similar to the one before us. In Everett, the
Association proposed a flat cash Payson equal to 50% of the
value of the existing sick leave balance upon separation or
retirement.
In his discussion of that issue, Arbitrator Axon opined as
follows:
"The Arbitrator is convinced that there is merit
to a program which provides an incentive for
employees to avoid using their sick leave. The
sick leave accrual incentive should only be
payable at the death or retirement of the employee.
The Arbitrator views this as a long-term program
which should not be available when an employee
leaves City employment prior to retirement or
death. The City's comparables provide evidence
that some form of cachet is a benefit enjoyed by
police officers employed in the comparable west
coast cities ."
My review of the sick leave provisions of the nine
comparables in this case provides the following:
COMPARABLE ACCRUAL MAX. WHEN PAY OUT OCCURS & PAY OUT
Arlington: 240(inc.vac.) 8 hrs for each 24 hrs of sick
leave. Upon quit or retirement.
Lake Forest Park: All Layoff or separation: 25%
Disability Retirement: 100%
Death: 100%
Retirement: 50%
Mill Creek: 8 hrs /mo Ret. after 10 yrs 25%
max of 1040 Death off duty: 25%
hrs. Death on duty: 100%
Monroe : 3 hrs for each Upon termination 100%
4 hrs of Sick
Leave. Max. of
700 hours.
Mountlake Terr. 8 hrs for each At termination 25%
month.Those on
4/12 shifts
get 8.395 hrs.
Max. of 960hrs.
Mukilteo: 8 hrs per mo. At honorable term.:
480 hrs cachet after 5 years: 80 hrs
at 16.7% (5)or after 10 years: 160 hrs
at 33.0% (10)
Port Angeles: 3.69 hrs. per After 10 yrs. upon
pay period. ret. or disabil. 20%
Max. unlimt. Max pay-out of 1200 hrs
Sumner: One shift/mo Max. of 90 shifts
Max of 120 Resign. or Term. 25%
Shifts. LEOFF 25%
Dis. Ret. 50%
Death 100%
Retirement 100%
Tumwater: No Sick Leave buy back program.
The City calculates that if the Guild's proposal were to be
accepted, its total cost over the three years of this new
agreement would amount to $35,113.00, based on an assumption of
one retirement per year.(Cx.6.6.5)
After reviewing the record evidence on this issue, the
Arbitrator finds himself in agreement with the opinion expressed
by arbitrator Axon in his Everett arbitration. Id. That is,
there is much merit in providing an incentive for employees to
avoid abusing their sick leave. I also am of the opinion that an
accrued sick leave pay out should occur only upon the death or
retirement of the employee. As in the Everett arbitration, the
comparables in the instant case also evince a near-total (89%)
acceptance of the principle of a sick leave buy out of some
sort. Keeping in mind the potential cost to the City, I will
modify the Guild's proposal to better reflect some aspects of
the provisions of the comparables. In addition, in order to
avoid potential accounting and payroll nightmares, the new
buyout provision of Article 9.4 will take affect in the third
year of the new Agreement; specifically, some sixty days after
the issuance of this award.
AWARD
The Arbitrator awards as follows:
1. The Guild's proposal on sick leave buy out is rejected and
the current language shall remain unchanged for the 2004 and
2005 years of the Agreement,
2. The current language of Article 9.4 shall be modified as
follows:
9.4 Sick leave cannot be taken before it is actually accrued.
There shall be no sick leave buy back from the period of January
1, 2004 to February 28, 2006.
The Arbitrator awards that the following new language be added
to the Agreement:
9.4.1. Effective March 1, 2006 employees will be allowed, upon
retirement or death, to receive a cash buy out in an amount
equal to 50% of their then existing sick leave accrual balance
up to a maximum of 500 hours.
ISSUE NO 5. HEALTH & WELFARE
BACKGROUND:
As stated, supra, the City has a collective bargaining
relationship with four units: The Police Guild, IAFF,
noncommissioned Police and Teamsters. The City's Exhibit No. 5.3
is a graph showing which group of employees have been paying on
a monthly basis towards the health insurance. The graph
indicates that only the Firefighters have been contributing
towards the health insurance premium and have been doing so at
least since 2001 when their cost was $17.00 per month. The cost
rose to $186.00 per month in 2003. In 2004, the IAFF changed
premium payment from an composite rate to a tiered rate. The
monthly cost then rose to $422.00 for 2004 and then went to
$392.00 for 2005. The collective bargaining agreement between
the IAFF and the City for 2006 and beyond had not been settled
at the time of the close of the hearing in the instant case.
CX 5.3 also indicates that for 2006, the Teamsters and the
City agreed to $40.00 per month cost to the union members. It
also shows that the noncommissioned police bargaining unit has
reached agreement with the City on the City's proposed $35/$45/
$55 monthly contribution towards the premium cost for years
2004, 2005 and 2006. The City offers its employees the choice of
a Group Health Plan (Regence Plan through Regence Blue Shield or
a Preferred Provider Plan (PPO)(Cx 11.) The PPO Plan provides
higher reimbursement rates for preferred providers than those
not on the preferred list. Id. In Skagit County, there are very
few specialists who are not on the preferred provider list so
substantially all services are reimbursed at the higher
preferred provider rate. In recognition of this, 20 of the 22
employees in the Guild's bargaining unit have chosen the PPO
0 Plan. (Cx 5.7).
The City first asserts that, like most employers, it is
grappling with skyrocketing health insurance costs. In order to
mitigate this substantial cost, it is proposing to introduce
what it terms a modest cost sharing plan whereby employees would
contribute $35.00 towards the cost cost of health insurance for
year 2004, $45.00 for year 2005 and $55.00 for year 2006,
regardless of the number of dependents might be covered.(Cx 5.1,
5.2). It adds that the City would continue to pay 100% of the
cost dental, life, vision and orthodontia coverage.
Nationally, premium rates have dramatically increased in the
last several years. (Cx5.14) A nationally-respected survey
company, the Segal Company, issued its 9th annual Health Plan
Cross Trends Survey on August 15, 2005. Id. A trend, as
explained by the Segal Company, is the forecast change in health
plans' per-capita claims cost determined by insurance carriers,
MCOs (Managed Care Organizations) and TPAs (Third party
Administrators). In its report, the Segal Company's report shows
a health care industry trend for AWC (Association of Washington
Cities) of 14.3% for 2006 and 14.0% for 2007. The AWC's actual
projected adjustment is 12.0% for 2006 and 12.0% for 2007. The
City points to the fact that AWC's premium rates increased by
more than 20% in 2002 and and again in 2004. It also draws the
Arbitrator's attention to the City's own rate increase
experience since year 2000 by offering the following
chart:
Year Family of 4 Medical Medical CPI W - First Half
Monthly Premium Insurance of Each Year
Increase
2005 $929.45 8.00% 3.10%
2004 $860.61 26.00% 2.20%
2003 $683.00 15.50% 2.50%
2002 $591.35 6.30% 1.00%
2001 $556.28 3.00% 3.30%
2000 $540.08 27.04% 3.50%
According to the City, these figures translate to an increase
in the City's health care costs from $547,894 in 1999 to
$2,106,763 in 2004. This reflects a 285% increase in just the
last few years. Using the national data, which projects a 14%
increase, and attempting to err on the conservative side, the
City has projected an additional 12% increase in these costs in
2005 and 2006.
Almost universally, employees are being asked to share in the
cost of health care coverage to some degree. As noted by
Arbitrator Wilkinson, this was true four years ago. King County
Fire District #44 (Wilkinson, 2001)(City Att. S)("more
represented employees are sharing in the costs of health care
insurance to some degree" Id. at 53).
Further support is found in the survey of government
entities performed by MARSH USA, a national brokerage firm.
Cx5.12; Wilmes, II, 11. It found that an average employee paid
$43.00 per month or 13.0% of the premium cost for employee
coverage in 2003. Employees seeking full-family coverage were
paying $225.00 per month or 32.0% of the premium cost. Id. at 7-
8. The City's proposal is well within this range, as its
$35/$45/$55 per month sharing of health care premiums sought
from Guild members translates to no more than 3.40% to 4.40% of
the total cost their medical coverage. Under its plan, the City
avers that it would continue to pay more than 95.0% of the cost
of medical coverage if its proposal is accepted.
Based on this new health care reality, arbitrators have not
hesitated to fashion awards that include employee health care
cost contributions. As stated by arbitrator Wilkinson:
"Arbitration awards from the past several years also
have shown willingness on the part of arbitrators to
to frame an award that includes some sort of employee
contribution to the cost health care insurance.
Appendix A to this award lists all the awards about
which the neutral Arbitrator has knowledge from the
past four years that have addressed the issue, and
the arbitrator's disposition. In most of those cases
the employees either were, or ended up, making a
contribution to the cost of insurance."(fn:25)
________________
fn:25 King County Fire District #44, 54-55 (Wilkinson,2001) (An. S)
In another case, Arbitrator Axon concluded as follows:
The days of 100% employer payment for insurance
benefits are coming to an end. This award on the
insurance issue should be taken by Union members
as a warning that on expiration of the 1999-2001
contract the time will be right to expect employee
contribution to insurance programs based on what
the comparators are paying..."(fn:26)
__________________
fn:26 City of Burlington, 49 (Axon, 2000 ) (Att.F)
The City maintains that true "apples-to-apples" comparison
regarding the comparable jurisdictions' employer and employee
health care costs is impossible because of the number of
variables that affect those costs, including the type of
benefits offered by each employer, the percentage of employees
who chose a particular benefit, and the employer's cost
experience. The City's plan is also reasonable because it
follows the trend internally as well as nationally.
As a threshold matter, it is important to note that the
Guild's data is misleading and simply wrong in several important
aspects. For example, the Guild stated that Anacortes did not
provide a separate orthodontia benefit. Gx 213. This is false.
The City does provide such a benefit. Tr I11 89; Cx A.3.
Similarly, the Guild showed the City's cost for full family
coverage at $826. per month when it is as high as $1,112. Gxs
214-215. Finally, as the Guild acknowledged at the hearing, it
is inappropriate to compare plans with a tiered rate to those
with a composite rate. The Guild, however, did just this
comparison in an attempt to justify its refusal to contribute
toward the cost of their coverage. For example, it compares the
composite rates for cities like Bonney Lake, Monroe and Mount
Vernon with the tiered rates for other jurisdictions. GXs. 209-
210.
As the Guild could not rebut the City's evidence on this
issue, it argues that their agreement to move from Plan A to the
PPO Plan during the last contract justifies their refusal to
contribute toward their premium costs because the PPO Plan costs
approximately 16% less than the cost of Plan A. The Guild claims
this translates into a 16.% reduction in benefits.
The City contends that the Guild's argument is nothing but a
"red herring" for at least three reasons. First, even the
Guild's witness acknowledged that there are some benefits
provided under the PPO Plan that are more favorable than those
provided under Plan A.(fn:27) Second, the fact that this bargaining
unit is now covered by the PPO Plan does not justify a zero
contribution by employees. This is perhaps best illustrated by
the fact that the Firefighters are now on the PPO Plan and they
pay $392. per month for full family coverage as compared to the
$45.00 the City is asking of this unit. Third, the Guild cannot
cite any arbitral authority for the proposition that they are
somehow immune from the skyrocketing costs of health care
coverage and the need for employee contribution because they
agreed to move from an arguably premium plan to the the PPO Plan
over five years ago. For example, the city of Mill Creek
officers are also on the PPO Plan and they contribute between
$16.00 and $46.00 each month towards the cost of their coverage.
Gxs 209,222.
__________________
fn:27 TR III D'Amelio, 72,73
The Guild also relies on the pending unfair labor practice
charge as justification for their opposition to any cost
sharing. The collective bargaining agreement which expired at
the end of 2003 required the City to pay 100% of the cost of the
PPO Plan for the term of the agreement. Thus the City has
continued to pay the cost of coverage as it existed at the time
the agreement expired in order to maintain the terms and
conditions then in effect. Cx 5.15. Without arguing the merits
of the Pending ULP, a full analysis of which is contained in the
City‘s brief submitted in the ULP proceeding and a copy of which
is contained in the City‘s exhibits submitted in the instant
case (Cx 5.15), the city believes that in doing so it fully
complied with its duty to maintain the status quo. The Guild, on
the other hand, claims the City is required to continue to pay
all increases in the cost of medical coverage since the
agreement expired in order to maintain the status quo. The issue
is pending before the Public employment Relations Board. Cx
5.15.
The Guild suggests that the arbitrator’s authority to rule on
this issue is usurped by the ULP charge. Even the Guild‘s
counsel acknowledged at the hearing, this is false. The PERC has
not dismissed this issue from interest arbitration, leaving the
matter squarely within the arbitrator‘s authority to resolve in
this interest arbitration proceeding. Under the city’s proposal,
the employees would not have to contribute any new money toward 0
the cost of their coverage. Rather, if the Arbitrator accepts
the City's proposal, the City will refund to the employees the
cost they paid toward their coverage in 2004 less the employee's
monthly contribution rate of $35.00 and the City would make the
same refund calculations for 2005. Thus, awarding the City's
proposal would not result in any additional out-of-pocket costs
for the employees at this time.
For all these reasons, the City requests that the arbitrator
award the limited employee contribution the City has proposed.
The Guild takes the position that Arbitrators have generally
addressed health insurance coverage as an economic issue to be
decided predominantly by the same type of consideration that
guide the wage award. Many arbitrators have rejected arguments
that law enforcement health insurance awards should be
controlled by internal equity factors. For example, in Kitsap
County, arbitrator Roger Buchanan rejected the employer's
argument that the Deputies should be placed in the single plan
coverage assigned to other bargaining units:
"It is the conclusion of the arbitrator that
employees, who are in high risk employment such
as Sheriffs Deputies should be in a health
insurance plan that presents top quality, easily
available medical care. ''(fn:28)
______________
fn:28 Kitsap County (Deputy Sheriffs) (Buchanan, 1998).
Similarly, and very recently, in Kittitas County, arbitrator
George Lehleitner rejected the employer's argument that the
union's proposal was too expensive for the county. The
employer's proposal provided employee benefits but was weak in
full family coverage. The arbitrator rejected that proposal as
being "fatally flawed". He indicated:
The neutral Arbitrator concurs with the Union's
characterization of the current situation with
respect to health benefits as "intolerable" and
I would add the words "troubling". To be blunt,
while I recognize that sharply escalating health
insurance premium costs are making it difficult
for employers to provide fully paid, quality health
coverage for their employees, I am shocked by the
out-of-pocket premium costs paid by Kittitas County
officers (and some others) for full family coverage.(fn:29)
_______________
fn:29 Kittitas County (Deputy Sheriffs(Lehleitner 2003)
In the present case, the Guild has put forward compelling
data that demonstrates that its members are already paying more
than the average of comparables when a total analysis is done
that looks at both monthly premium contributions, and more
importantly, the imputed contribution that employees make
through health plan reductions. In contrast, the City only
focuses on part of the story, arguing that the "trend" is for
employees to pay a portion of their premiums and that other City
groups have agreed to pay what it would characterize as a
"small" amount. The Guild acknowledges that, generally, police
employees are paying more for their health insurance than they
were ten or fifteen years ago. In fact, the Guild put this
acknowledgment into action by recently assuming some of this
financial burden. In just the last contract the Guild made a
major concession of moving to the City's AWC PPO plan, its
third level plan with lower monthly premiums and increased
access costs when employees use the service. This change
resulted in major financial contributions from the Guild
members.
The City's proposal will only add to the financial hardships
for police employees and set this group further back behind
their comparables. The Guild and its members are entitled to
credit for the concessions already made.
An comparison of agencies show how substantial these
contributions are. The best explanation of how much the Guild
members are already paying for their health insurance and the
disadvantage that this puts them at in comparison to like
agencies is the following table, which can be found in Guild
exhibit 236:
Employee Plan
Premium Contribution- Total Generated
Contributio Diminished (imputed)
Plan Coverage* Full Family Benefits From Employee
City (Premium Cost) Tier Plan A Contribution
AWC Plan A
Arlington ($1,097.40) $70.40 $ 0 $70.40
AWC Plan A
Burlington ($1,097.40) $50.40 $ 0 $50.40
AWC Plan B
Camas ($1,002.00) $41.00 $ 0 $136.40
AWC Plan A
Des Moines ($1,097.40) $ 0.00 $ 0 $ 0
AWC Plan A
Issaquah ($1,097.40) $141.00 $ 0 141.00
Lake Forest AWC PPO Plan
Park ($929.45) $0 $ 167.95 $167.95
AWC Plan A
Marysville ($1,097.40) $70.40 $ 0 $70.40
AWC PPO Plan
Mill Creek ($1,097.40) $46.45 $ 167.95 $214.40
AWC Plan A
Monroe ($1,097.40) $140.80 $ 0 $140.80
Mountlake AWC Plan B
Terrace ($1,002.00) $65.00 $95.40 $160.40
AWC Plan A
Sumner ($1,097.40) $55.00 $ 0 $55.00
AWC Plan A
Tumwater ($1,097.40) $32.1 $ 0 $32.12
Average
Average Imputed
Employee
Contribution $54.84 $40.52 $95.33
AWC PPO Plan
Anacortes (929,45) $ 0.00 $167.95 $167.95
* Excludes Composite Rate Plans.
According to the Guild, this exhibit looks at three points of
measurement: (1) how much employees in these various
jurisdictions pay toward monthly premiums;(2) how much employees
implicitly contribute through diminished plan benefits
(generally resulting in some out of pocket costs); and (3), the
total contribution ascribed (imputed, according to the Guild)
to employees for their health insurance costs. The second two
columns may not be intuitive, according to the Guild, and
require some further explanation, but with this understanding in
hand, it becomes clear that Anacortes Guild members are already
contributing more for their health insurance than these other
agencies.
First this exhibit only looks at those agencies with tiered
rate plans, as composite rate plans cannot be analyzed on an
apples-to-apples basis. Fortunately, all the jurisdiction with
tiered rate plans use one of the AWC products. AWC currently has
enrollment in three different plans, ranging from its most
comprehensive plan called A and its comprehensive plan being the
PPO Plan. AWC also decreases the cost of the monthly premiums.
What the Guild has done in Exhibit 236, though, is translated
the cost differential from one plan to the next into an imputed
employee contribution for those plans on a one-to-one basis. For
example, the cost of AWC Plan A is $1,097.40 per month and the
cost of AWC Plan B is $1,002.00 per month, with the difference
being $95.40(Gx 216,217). Thus the total imputed contributions
for going down to Plan B is $95.40
The logic behind this is that actuaries at AWC and Premera
have already assigned a dollar figure associated with the
reduction in benefits from one plan to the next. The population
covered by these services and the cost of the services
themselves, however, do not substantially change depending on
what plan the employees have coverage. So, the reduction in plan
benefits now means that the employees must pick up the
difference in those costs when they use the services. The
actuaries at the insurance companies have determined those costs
to be the difference in the monthly premiums for the plans. So,
it is reasonable then to use those same figures to determine how
much employees are paying for being on one of the lower level
plans.
The health benefits plan comparison table compiled by the
Guild also demonstrates, on a much broader basis, the scope of
diminished benefits Guild members must surrender to be under the
PPO plan as compared to the health plans made available in most
of the comparable jurisdictions. For example, the maximum annual
out-of-pocket costs that someone covered by AWC Plan A or B, the
Teamsters Trust Plan A or the UEBT (United Employee Benefit
Trust) Plan A, is almost universally lower than that which
exists for the PPO plan. Also, unlike the ASWC PPO plan, many of
the other plans do not have any meaningful physician access
restrictions, a highly valuable feature for most consumers. Thus
the shortcomings in the PPO plan are not strictly limited to the
imputed dollar costs, but they can also be seen through the
diminished level of benefits made available to those individuals
covered by the PPO plan.
With that understanding in mind, it becomes clear how much
Guild members are already paying for their health insurance by
having agreed to move down to the PPO plan in just the last
contract. The average total generated employee contribution for
full family benefits for those groups with a tiered rate plan is
$95.33 per month. Gx 236. This includes an average of $54.83 in
direct employee contributions to monthly premiums and an average
of $40.52 in generated contributions through diminished plan
benefits. In comparison, the Guild members are already paying a
total generated contribution of $167.95 per month for full
family benefits. The Guild members are paying approximately
$72.62 per month, or $871.44 on an annualized basis, more than
the average of these departments with tiered rate plans. This
contribution amount is equal to nearly 1.75% of an officer's
base wage.
The City, on the contrary, focuses only on the dollar level
that employees are contributing to the various medical plans
only in the form of premium contributions. This methodology is
flawed because it fails to consider the difference of immediate
out-of-pocket costs required by the plans. All but two of the
agencies with tiered rate plans require employees to pay
something toward the monthly premium. However, of these
departments, eight of them offer Plan A to their employees.
Under the Guild's analysis, even a contribution of $70.00 or
$80.00 under Plan A is still vastly superior to being under the
PPO plan, and even better than Plan B. It is an apples to
oranges comparison for the city to claim that most jurisdictions
require an employee contribution to premiums, so Anacortes
should also, because it fails to take in consideration the
difference in plans. Conceivably, the employees in those
jurisdictions chose to pay something for monthly premiums in
order to stay with Plan A. Most employers would be indifferent
to a decision by employees to pay, for example, $95.00 per month
to stay on Plan A as opposed to making no monthly contributions
to premiums but moving to Plan B. Under that scenario, the
employer's costs are the same. In this case, the Guild chose to
take a diminished plan instead of paying toward monthly
premiums. Having recently made significant concessions, the
Guild members should not now be required to pay twice.
For the reasons stated above, the Guild urges the Arbitrator
to reject the City's proposal.
DISCUSSION AND FINDINGS:
Record evidence clearly establishes that the often claimed
meteoric rise in the last four to five years in health care
costs is now a fact (Cx 5.5). From 2001 to 2006 the cost to the
City of Anacortes of health care insurance premiums for a family
of four has risen from $646.00 per month to $1,244.00. or more
than 92%. Id.
My review of the health care benefit coverage and
accompanying premiums contained in the collective bargaining
agreements of the accepted comparable jurisdictions confirms the
data provided in the City's Exhibit 5.4 regarding employee
contributions to the various health care plan coverage which
reveals that all (emphasis added) of the nine (9) comparables
require some amount of payroll (emphasis added) contribution by
a covered employee towards the premiums, at least for
dependents. City Exhibit 5.4 shows the following:
Agency Plan Employee Contribution
Arlington AWC Regence Plan A 10% for dependents
Lake Forest Park Group Health of
WA Physicians Service
PPO 7.5% for dependents
Mill Creek doesn't identify 10% for dependents
Monroe Teamster Plan JC28XL $135.58
Mountlake Terrace doesn't identify 10% for dependents
Mukilteo AWC Regence Plan A $73.57 (Comp. Rate)
Sumner AWC Regence Plan A $50./mo./04; $55./mo/
05; $60./mo./06 for
Emp. and Dependents.
Tumwater AWC Regency Plan A $32.51 for dependents
As stated by both parties in their brief, it is almost
impossible to make "apples-to-apples" comparisons of various
benefits and rates among the comparables because of the
variances in benefits, types of plans, the number of employees
participating therein or rate structures, i.e., composite or
tiered and the employers' cost experience.
In the instant case, this Arbitrator need not delve into
comparisons of plans or rates. Contrary to the Guild's
contentions, those points are not what is rather obviously at
the heart of the issue before him. What is to be determined is
whether or not the Guild members should, from their pay,
contribute a portion of the monthly health care premium and
whether or not the City's proposed amount is reasonable. The
Guild's contention that its members' previous move to the PPO
plan constitutes a de facto individual cash contribution to the
monthly health care cost premium is found to be without merit.
Record evidence establishes that Guild members had, and still
have a choice of health care plans,i.e., Regence Plan A or the
PPO plan. Witness Emily Schuh, the City's Human Resources
Director, testified as follows on this issue under direct
examination:
Q. looking at exhibit 5.11 in that section, do the
employees in this bargaining unit as well as
other employees in the city have a choice between
the plans they can go under?
A. That is correct, we offer two plans, a Group
Health plan which has a ten-dollar ($10.00)
co-pay and Regence Preferred Provider plan also
with a ten dollar ($10.00) co-pay.(fn:30)
_______________
fn: 30 TR III, Schuh, 8,9,
Witness Schuh's testimony is supported by the following
language of Article 12.1 of the Agreement:
12.1 Insurance benefits will continue to be purchased
through the Association of Washington Cities. Effective
January 2002, employees are able to choose between the
Group Health $10.00 co-pay plan and the Regence Preferred
Provider $10.00 co-pay plan. The Health and Welfare
package includes medical,dental, orthodontia, vision,
short-term disability, life insurance, and an employee
assistance plan. For the duration of the Contract,
(beginning in 2002) the City will pay 100% of the health
and welfare premiums. Cx.A.3.
Depending on circumstances, and for personal reasons, an
employee may find one plan's benefits to be more attractive than
the other. Here, the Guild implies that the twenty (20) of the
twenty-two (22) members who are now in the PPO plan were somehow
compelled (emphasis added) to switch plans to the PPO plan which
provides lower benefits than Plan A; the Guild therefore argues
that by being put in that position, the reduced benefits of the
PPO plan somehow should be considered as the equivalent of an
imposed ("imputed", to cite the Guild's often used term in its
brief) cash contribution towards the monthly premiums. I find
the Guild's argument to be less than persuasive. An application
of the Guild's logic in the instant case was also unsuccessfully
attempted by the IAFF in a recent City of Port Angeles interest
arbitration, wherein Arbitrator Gaunt determined that, effective
July 1, 2004, bargaining unit members are to begin paying 7% of
their dependent health insurance premium cost. (fn:31)
_________________
fn:31 Port Angeies (IAFF)(Gaunt, 2004)
My reading of the following recently adjudicated interest
arbitration cases establishes that, during the past five years,
arbitral authority has shown a marked disposition, based on case
evidence, towards ordering employees to make some contribution
to the escalating costs of health care premiums. For
example,from Arbitrator Gaunt:
"...Across the United states, employers are
increasingly seeking some form of cost sharing ...
premium increases have been so large that they
do provide compelling reason to initiate an employee
contribution towards the cost of dependent medical
insurance. City of Port Angeles(IAFF)(Gaunt, 2004).
From Arbitrator Axon:
"This award on the insurance issue should be taken
by Union members as a warning that on expiration
of the 1999-2001 contract, the time will be right
to expect employee contribution to insurance
programs based on what the comparators are paying."
City of Burlington(SE1U) (Axon, 2000).
From Arbitrator Greer:
"Upon consideration of all the statutory factors, I
conclude that the City shall pay 50% of the premium
to cover each employee's spouse and children, under
the current insurance policies, beginning January 1,
2001. "Walla Walla County(Sheriffs Assoc.) (Greer, 2000).
From Arbitrator Axon:
"The $43.00 difference is not excessively higher than
the amount the County is paying its other employees.
On the other hand, the members will have an
approximate $57.00 per month out-of-pocket expense
for the last five months of 2001. This is not an
unreasonable amount which will impose undue burden
on the members to purchase the comprehensive
insurance benefit package." Mason County(Woodworkers)
(Axon,2001).
From Arbitrator Krebs:
"With the City facing challenging economic circumstances,
it is reasonable for employees to share to some extent
in the cost of these increases." City of Anacortes
(IAFF)(Krebs, 2003).
From Arbitrator Levak:
"Any monthly premium contribution required above the
County's contribution shall be paid by a reduction
of the necessary amount from each employee's
salary." Mason County(IAFF)(Axon, 2005).
The Guild also alludes to a pending Unfair Labor Practice
charge brought against the City by PERC. It is my understanding
that PERC's decision has been appealed. I am of the opinion that
there is no nexus between this interest arbitration and the
pending ULP matter. I will therefor refrain from addressing the
Guild's comments and contentions on that matter.
AWARD
Keeping in mind the provisions of RCW 41.56 and having
thoroughly studied the arguments and evidence presented, I find
that a contribution by Guild members to the premium of their
chosen health care plan is appropriate. In view of the
contributions currently being made by other City employee
groups, I also find that the City's proposal of a contribution
of $35.00 for 2004, $45.00 for 2005 and $55.00 for 2006 is not
an unreasonable sharing of health care costs to ask of
employees, given the fact the City's Firefighters are currently
contributing more than those amounts, the noncommissioned
Officers have agreed to a $55.00 per month contribution
beginning in year 2006 and the Teamsters have agreed to pay
$40.00 per month for dependents starting in 2006. The Arbitrator
hereby orders that the members of the Anacortes Police Services
Guild contribute $55.00 per month in year 2006 towards the
premium of the health care plan in which an employee is
enrolled. In order to permit Guild members to effectively plan
their budget, it is also ordered that this contribution be
effective March 1, 2006.
ISSUE NO. 6 WAGES
The Guild proposes a wage increase of 3.5% effective January
1, 2004, 3.5.% Effective January 1, 2005 and 3.5% effective
January 1, 2006.
The Guild's position is that wage comparisons should be made
using reasonable methodology which allows for a fair "apples-to-
apples" comparison. Various points in a pay plan need to be
considered to determine whether there is a true wage gap.
Arbitrators have been fairly consistent in considering both
education and longevity premiums in measuring relative wage
inequities.(fn:32) Disregarding those incentives could lead one to
overlook a true wage inequity.
__________________
32 See, e.g., City of Pasco (Police) (Krebs 1990) at 52-53 (App. 10); City of Richmond (Police)(Beck
1987) at 21-22 (App.16)
To the extent arbitrators do attempt to compare the base wage
without any premiums, they generally do so at the "top step"
wage. The Guild is unaware of any arbitration decision where the
arbitrator has compared a target jurisdiction, whose top step
might occur at only three, or as in this case, four years, only
to comparables on the three or four-year step. At times here can
be comparison problems if a particular jurisdiction does not
have a top step at the generally recognized industry journey
level standard of five (5) years or less. But that is not an
issue here, as virtually all the jurisdiction top out within
five ( 5 ) years. The comparison methodology applied by the Guild
here is consistent with that standard, i.e., comparing five (5)
year officers to five (5) officers and by defining five (5)
years to mean sixty (60) complete months of service.
Another consideration in methodology concerns "lagging" wage
data. In other words, where the collective bargaining agreement
of comparables have expired, it is more difficult to make a true
"apples-to-apples" comparison. While some arbitrators have
indicated that where wage data is stale, that is a basis for
precluding such a jurisdiction from being considered as a
comparable, the difficulty with such an approach is that it does
not enable the parties to develop a long term, stable list of
comparables. In the Guild's view, the more sound approach was
that suggested by an arbitrator who indicated that such wage
data could be "projected" considering local area settlement
trends.(fn:33) In short, when addressing the wage gap, our Arbitrator
should carefully consider the year of comparator data and apply
a reasonable projected wage increase to fashion an "apples-toapples"
comparison.
_______________
fn:33 See City of Canton, 96, LA, 264(1990)
The wage data of record indicates that the Anacortes officers
are far behind the market at almost every possible point of
cornparison. The Guild's proposal reflects the need to close the
gap in a number of areas. Before addressing the specifics of the
current and significant wage gap, the Guild draws the
Arbitrator's attention to the fact that most of the wage figures
offered by the Guild and the City are at odds. The City's
analysis contained several errors, repeated the and time again
and from jurisdiction to jurisdiction, and account for many
discrepancies in the wage numbers, in particular at the 5-year
level. A fundamental flaw in the City's analysis is that it
fails to engage in a true "top step" wage analysis. It purports
to compare "5 year officer's'' wage, yet in asserting this wage
the City mistakenly cites the wage at the 48th month of service,
or, in other words, what an officer makes the day after
completing four years of service. By attempting to pass off an
officer "in his/her fifth year" as a 5-year officer, the City
offers data which are misleading and ultimately useless.
A true apples-to-apples comparison cannot be made where it
ignores the reality that a number of jurisdictions offer an
additional step upon the completion of five years of service, a
step left out of the City's wage charts. The more appropriate
wage to use at the 5-year service level is the wage applicable
at the 61st month of service.
An example of how labeling the 48-month wage as the 5-year
wage can lead to seriously misleading results is demonstrated by
the following table which compares the 2005 figures for several
different jurisdictions as represented on the City's wage charts
versus the Guild's wage chart. The figures in both of the City's
charts purport to represent the "5-year'' wage, but by using the
48-month wage instead of the more appropriate 61-month wage, the
City seriously under reports the wage in these jurisdictions.
Jurisdiction City 5-year AA Guild 5-year AA
2005 wage 2005 wage
(48+ months) (60+ months)
Arlington $4,690 $4,910
Lake Forest Park $4,720 $4,812
Mill Creek $4,611 $4,840
The other error in the City's wage figures is that they
stack the longevity and education premium on top of one another,
resulting in a compounding effect that leads to incorrect wage
numbers. The Guild appropriately calculates the longevity and
education premiums separately as a percentage of the base wage.
For example, the Marysville 2005 4-year base is $4,543 per
month, and they receive an additional 1% longevity premium and a
6% AA premium.(Gx 45). The proper calculation here, and the one
used by the Guild, is to take 1% of $4,543 and then add that to
6% of $4,543 for a total of $4,861. Under the City's
methodology, however, it would take 1% of $4,543 to get a new
figure of $4,589 and then take 6% of this new number to come to
a final wage of $4,864.00, The discrepancy is only slight and
actually is one in favor of the Guild, but the calculation is
nonetheless inaccurate. These two issues account for most of the
discrepancies between the Guild's figures and those of the City.
For the remaining inconsistencies, the Guild went back and
carefully reviewed all of its wage charts and checked for
errors. While a handful of errors were discovered in the Guild's
calculations, they were relatively small. Nevertheless, the
Guild has attached to its brief a series of replacement wage
exhibits to account for those minor errors in an effort to
provide the most accurate exhibits as is possible. References to
the wage figures in this brief will be to these replacement
exhibits which reflect a correction of all discrepancies
identified during the hearing.
When performing a wage comparison it is only fair to consider
the various premiums afforded to officers in order to determine
their actual take home pay. The guild's wage analysis
incorporated the actual education and longevity premiums within
the various comparables in making these matches.
Based on the most recent settlements, Anacortes' police
officers currently find themselves 5.45% behind at the 5-year
no-degree level when contrasted with the Guild's proposed
comparables, translating to a dollar difference of $261.45 per
month.(Gx 61) This wage discrepancy is not a phenomenon that can
simply be attributed to the fact that the City and the Guild
were unable to agree to a new collective bargaining agreement
and had to proceed to interest arbitration. In 2004, the Guild
officers were already 3.31% behind the comparables at the same
5-year no-degree level.
Failure to keep pace with the comparables will have a
negative impact on employee morale. Arbitrators in general have
addressed this danger. For instance Arbitrator Gaunt:
Arbitrators recognize that an award of wages falling
below those in the labor market will cause turnover
and low morale. Such awards are generally avoided,
so long as a subject jurisdiction has the ability to
pay a greater amount. (fn:34)
________________
fn:34 City of Pullman(Police)(Gaunt 1997).
Arbitrator Levak has stated:
The Arbitrator has also considered the traditional
factor of the "interest and welfare of the public."
The arbitrator has determined that it will serve
those interests to pay a wage that is at least the
average of the comparators. Payment of a lesser
wage, in the face of a demonstrated ability to pay,
can only have significant effect on morale and a
resultant decrease in the quality of police service."(fn:35)
_________________
fn:35 City of Walla Walla(Police)(Levak 1986).
Increases in the Cost of Living Index should be given less
consideration in light of the settlement trends and other
factors. A mere CPI adjustment would never permit a lagging
jurisdiction to catch up unless wage settlements were reduced
below the rate of the CPI increases, a condition not seen in the
Washington law enforcement labor market for many years.
The parties' recent settlements have allowed Anacortes
officers to keep pace with the settlements but have not been
enough to close the gap. To now reverse course and move in a
direction of making wage proposals that are simply based on cost
of living increases-and then not even at the rate of a 100%
adjustment- does not make sense. In short, because the cost of
living numbers during what will be the first two years of this
successor agreement were clearly out of line with the average
settlement among the proposed comparables, those particular
figures should be heavily discounted or entirely disregarded by
our Arbitrator in crafting an appropriate award for 2004 and
2005.
Internal comparison to firefighters should be considered and
serve as base line for the wage award. For interest arbitration
groups, true comparison with other employee groups not eligible
for arbitration, is inappropriate given the statutory scheme
that governs. What can reasonably be given some weight is the
wage increase extended to the only other interest arbitration
eligible group. The arbitrator in the recent arbitration award
covering the City of Anacortes and the Anacortes Firefighters
felt it important to take into consideration the previous police
settlements and where the firefighters found themselves in
relation to the wages of police officers. In that award, which
covered the period of 2003 through 2005, Arbitrator Krebs noted
in his discussion of an appropriate wage award, that his
decision to award the fire fighters a 3.5% increase in 2003 was
"reasonable close to the increase negotiated with its police
officers for that year."(fn:36) Arbitrator Krebs ultimately awarded a
3.5% wage increase for each year of the agreement.
________________
fn:36 City of Anacortes(Fire)(Krebs,2003)
Given the latest arbitration award settlement of 3.5% for
each year of the 2003-2005 agreement for the firefighters,
anything less than what the Guild has proposed for that same
time period, which also happens to be 3.5%, would only further
exacerbate the wage gap that already exists. While the
comparison of wages between firefighters and police does not
constitute a true apples-to-apples comparison because of the
differing work schedules, being the only other interest
arbitration eligible group in the City of Anacortes, the awards
they receive, including wage awards, have an important bearing
on these proceedings.
In spite of the changing tides of the economy, the City's
fiscal situation has improved dramatically over the past several
years and will provide more than an ample base from which to pay
the proposed increases. Thus far over the course of 2005, tax
receipts among the City's main sources of revenue have been
above projections and well beyond what was received in 2004. By
June of 2005, the City had already collected 52.2% of its
projected amounts for property taxes and 56.2% of the projected
sales tax amount. The City began the year with a $1.9 million
unrestricted reserve, and appears likely to add to that number.
The City of Anacortes cannot now claim to be overwhelmed by the
Guild's proposals. For the reasons stated above, the Guild
requests that the Arbitrator award its proposed wages increases.
The City:
The City proposes a wage increase of 2.% effective January 1,
2004, 2.5% effective January 1, 2005 and 3.5% effective January
1, 2006. It points out that the 2006 wage increase includes a
1.% increase towards a buy-out of the existing shift
differentials. It asserts that Anacortes is one of the few
police departments that continue to pay shift differential.
Thus, the City emphasizes, its wage proposal on this issue is
contingent on the buy-out of the shift differential and that if
that proposal is not granted, the City's general wage proposal
for 2006 is then 2.25%.
The City contends that the Guild seeks to increase officers'
wages by 3.5% in each year of the agreement. In addition to
advocating for substantial wage increases to base wages, the
Guild also seeks to increase longevity, education and specialty
premiums. It is important to keep in mind the Guild is proposing
an increase on virtually every aspect of the officers' total
compensation. As set forth below, the City's proposal on wages
is supported by RCW 41.56 and other factors traditionally
considered by arbitrators., including comparable employer data,
cost of living information, internal parity, work load
statistics, the City's fiscal resources, the local labor market
and the absence of significant turnover.
The City's proposed wages exceed the comparables. The
analysis begins in 2003 because that is the last year there was
a collective bargaining agreement. The 2003 wages for the City
are compared to the 2003 wages of the comparables. The City's
current wage proposal is then applied to the 2003 wages to
formulate 2004, 2005 and 2006 wages which are subsequently
matched against what the comparables wages for the same years.
For comparison purposes, the City used the top step for an
officer. Of the various combinations of length of service and
degrees, it believes the most appropriate combination is an AA
degree and five years of service because this reflects the entry
level qualifications with the level of experience the parties
agree is necessary to become proficient in the profession. (fn:37)
__________________
fn:37 Tr., II, 100-101
After factoring in the City's 2004 wage proposal and
comparing it to the wages provided by the comparables in the
same year, Anacortes is within nine(9) dollars of the average of
the comparables.(Cx.6.2.2.). The track continues in 2005, with
Anacortes coming within 3.% of the average of its comparables.
(Cx.6.2.2.).
The guild's comparability data is seriously flawed. For
example, the Guild compares 2003 wages for the bargain ng un
with the wages provided in 2004 and 2005 for the comparable
employers to suggest that the City's wages are below the average
of the comparable jurisdictions. GX 60,61. The Guild's failure
to compare wages using the same year resulted in and "apples-tooranges''
comparison.(fn:38) It is more appropriate to compare wages of
the City with wages awarded in the same year by the comparables,
as the City has done. The Guild incorrectly argued that the wage
increases agreed to in other jurisdictions suggested that the
City's proposal was below the average. Gx. 75,76. Any particular
wage increase standing alone does not tell the Arbitrator
anything about what would constitute a reasonable wage increase
for the Anacortes police officers. A five percent increase does
not provide meaningful information unless it is analyzed in the
context of comparability of the current wages, increase in the
cost of living, department turnover, labor market conditions and
other terms of the parties' agreement. As mentioned below,
Anacortes is already in line with its comparables. Thus, while a
wage increase may seem high in one jurisdiction, it may be
warranted due to a perceived need to catch up to that city's
comparables. On the other hand, a one percent increase may be
entirely appropriate give the fact the employer has historically
been above the comparables and there is no need to "catch up".
Indeed, even the Guild acknowledged at the hearing that some of
these settlements may be due to turnover and recruitment issues
that are not faced here in Anacortes. Tr.,I, 125. In summary,
Anacortes is offering a wage package that is above the average
of its comparables.
_________________
fn: 38 Tr. I, 76-77, 80
The cost of living factor supports the City's proposal. RCW
41.56 also requires the Arbitrator to consider the cost of
living in fashioning an appropriate award. This factor clearly
supports the City's proposal here whether measured by an
historical comparison between the CPI and wage increases or the
current rate of inflation. The first subset of cost of living
focuses on the past. The City furnished an analysis of what has
happened to the actual wages for Anacortes' officers from 1993
through 2005 compared with what would have happened to the same
wage if the officers had received raises equal to 100% of the
CPI-U. Cx.3.5. Since 1993, an officer's actual pay increased
from a monthly salary of $2,945 to $4,739, an increase of 61
percent. Cx 6.3.5. If officers had received increases equal to
100% the cost of living during the same period, their wage
would have grown to $3,956, an increase of only 34 percent. This
is not a bargaining unit that deserves an above-market
adjustment in order to make for historical losses to inflation.
Rather, the officers' base wage increases have exceeded the rate
of inflation over the last decade. Cx 6.3.5.
The City's proposal is fair in light of current measures of
of the cost of living. The second subset of the cost of living
factor involves current measures of the cost of living. For the
current contract years, the Seattle-Tacoma CPI has remain at low
levels with annual averages of 1.6% in 2003; 1.2% in 2004, and a
current rate of 2.3% as of June, 2005. Cx. 6.3.1. These rates
are significantly lower than the All Cities CPI for the same
time period. Cx 6.3.3. Thus, the local inflationary rates do not
justify a significant wage increase.
The Guild's request to exceed the cost of living is without
merit. There is no justification for the Guild's desire to
exceed the cost of living. Even the Guild's own exhibits
demonstrate that the wage trends are far closer to 2.7% than
the 3.5% they are requesting .Gx 85 at 4. Perhaps recognizing
this, the Guild devoted a significant amount of time at the
hearing trying to paint a picture of Anacortes as an affluent
city that somehow justified higher wage increases. The Guild
then compared the percentage wage increases to increases in the
City's assessed valuation to suggest the City's wages have not
increased proportionately. Gxs. 152-53. The same argument was
rejected by Arbitrator Wilkinson in the City of Redmond case.
There, the Guild argued that the police officers could not
afford to buy a house in Redmond due to the affluence of the
community. The Guild then argued, as it does here, that
Redmond's affluence justifies a higher wage award. Arbitrator
Wilkinson unequivocally rejected this argument, noting that
there is no evidence showing that police wages and the
community's affluence have any correlation:
"If one were to take this argument to its logical
extreme, then the police officers in tiny, but
wealthy Medina or Clyde Hill should be the highest
paid in the State. Moreover, I am unaware of any
arbitration award that has taken the correlation
between wages and affluence (whether measured by
assessed valuation, median family income or other
measurements) into consideration."(fn:39)
__________________
fn:39 City of Redmond, 17,(Wilkinson, 2004)(Attachment V)
Indeed, RCW 41.56 is devoid of any suggestion that such an
analysis is acceptable - let alone appropriate. The reason is
obvious; there are several factors that contribute to assessed
valuation in any give year that make it an inappropriate
benchmark for determining wages. In addition, the attenuated
nature of the Guild's analysis is perhaps best illustrated by
what it suggests is an appropriate wage increase. According to
the Guild's data, the wages would have to increase by more than
57% to meet increases in assessed valuation. Gx. 153-53. The
Guild's analysis should be rejected.
Internal comparisons with other City employees support the
City's proposal. As noted, above, one issue considered under the
catch-all factor is internal parity with other City employees. A
number of Arbitrators have brought up the issue of internal
parity when addressing the "other factors" provision of RCW
41.56. 465 (f), e.g.,: Arbitrator Axon (Spokane County, 2000;
City of Burlington, 2000 and City of Mount Vernon, 1993);
Arbitrator Krebs (City of Kennewick, 1997).
Cx.6.4.1 demonstrates that Guild members have fared better
than all of the City's other employee groups:
Salary Increases Effective 1/1
Non
Commissioned Commissioned Non
Police Guild Police Fire Union Teamsters
1998 6. 3.5 4.375 3. 3.
1999 6.5 4. 4.5 3. 3.
2000 3.5 3.5 3.4 3.3 3.3
2001 4. 4. 3.3 3. 3.
2002 4. 4. 3.3 3. 3.
2003 3.25 3.25 1.5 1.3 .5
2004 2. 2.5 3.5 2.5 1.3
2005 2.25 3. 3.5 2.7 .3
Totals : 31.5 27.75 27.375 21.8 18.4
Since 1998, the officers' base hourly wage increased by 31.5%
as compared with an increase of only 27.75% for next closest
bargaining unit , the noncommissioned police unit. Thus there
can be no question that the officers have been treated fairly
based on the available data.
Ignoring this, the Guild argues that a comparison to the City
firefighters unit justifies its request for a substantial wage
increase. The Guild's data is fundamentally flawed. First, as
with the Guild's other "comparability" endeavors, it compares
2003 wages for officers with 2005 wages for the firefighters to
suggest that the officers are underpaid. as set forth in Cx
6.4.1., there can be no question that the officers have been
fairly paid when compared to other City employees, including the
firefighters. Arbitrator Gaunt commented as follows on the
subject of internal parity:
One unit may give higher priority to achieving step
adjustments in a wage schedule than to gaining a
higher across the board increase. For another unit,
the reverse may be true. One unit may accept a lower
wage increase because that increase maintains the
bargaining unit's wages at a level competitive with
the wages in other jurisdictions for similar jobs.
Another unit may find the same percentage increase
unacceptable because it does not result in a
competitive wage for their job classifications.
Consequently, internal parity is important, but
'not determinative in an interest arbitration under
the Washington statute'."(fn:40)
______________________
fn:40 Whitman County, at 17-18 (Gaunt, 2004)
The fiscal resource factor does not support the Guild's wage
demand. The City's proposed wage increases are fair in light of
of the City's decreasing revenues and increasing medical costs.
Over the last several years, a number of initiatives(referred
to as the Eyman initiatives) have significantly limited
Washington state municipalities' tax revenues. Cities, like
Anacortes, pay the waqes and benefits of its emergency personnel
through their general fund. Prior to 2000, the general fund was
supported by a motor vehicle excise tax in addition to property,
sales and utility taxes. On this point, the City emphasizes that
the Guild's data regarding the City's revenue resources
describes the situation that existed before the Eyman initiative
and does not accurately reflect the limited sources of revenue
available to the City today. Se e.g., GX 15.
The local labor data does not support the Guild's wage
proposal. Over the last decade, Washington's unemployment rate
has been higher than the national average. Cx. 6.7.1. Locally,
Skagit County's unemployment rate is even higher than the state
and national rate 5.8%. Cx 6.7.2. This is a full 1.2% higher
than the King County rate. Id. This higher unemployment rate
translates into lower wages and per capita income than the
national and state average. Cxs. 6.7.3., 6.7.4. Part of the
reason for this is the difference between Skagit's more rural
environment and the more urbanized areas in Washington, such as
the Central Puget Sound region. Thus the Guild's reliance on the
strong economy in King County and other parts of the Central
Puget Sound area (where Microsoft is located) is irrelevant.
The City's turnover experience does not support the Guild's
wage proposal. Another aspect of the catch-all factor is
turnover experience. As Arbitrator Axon stated in Clark County:
"The lack of turnover also reflects a compensation
package that is sufficiently competitive to attract
and retain qualified deputies."(fn:41)
_____________________
fn:41 Clark County(Axon, 1996)(Att. R)
The City's turnover rate does not reflect a problem with
attracting or retaining qualified officers, Since 1994, only six
officers have left the City- two of whom have since returned to
work for Anacortes. Cx. 6-8.1.; King, 11, 162-64. Of the other
four one left the law enforcement altogether and one moved to
Maine to be close to family. Id. None ever indicated that they
were leaving the City because of wages or benefits. Id. Nor is
there evidence the Department is having difficulty attracting a
sufficient number of qualified officers. King, 11,164. Rather,
as the Guild acknowledged, the City has never hired someone who
is unqualified. Tr. I, D'Amelio, 122. And, in fact the City's
four most recent hires all had bachelor's degrees, indicating
that the City is not having difficulty recruiting qualified
police officers.
In summary, the City requests the arbitrator award its wage
proposal as a fair and reasonable offer in light of the multifactored
analysis advocated by RCW 41.56
DISCUSSION AND FINDINGS
A threshold matter surfaced in the parties' brief as a result
of a difference of opinion as to what constitutes a "five-year"
officer for purposes of wage comparisons. The City maintains
that once an officer has passed the 48-month milestone of
employment he/she is to be considered a "five-year" officer,
that is, an officer "in the fifth year of employment". It
contends that the Guild's data for an officer with five years of
service is markedly different from the City's data. The Guild
asserts that an officer reaches the "five-year officer" level
only after he/she has reached the 60-month level of
employment, i.e., on the first day of the 60th month of
employment.
In their briefs, the parties expended much time and effort
defending their views on this point. The fallout from this
disagreement is that most of the numbers developed by the
parties to illustrate certain points in support of contentions
and argument could not be reconciled by the arbitrator because
of the varying results obtained when calculating averages, for
example, or comparing the position of Anacortes' basic five-year
salary to that of the comparables. From the record and for the
purpose of establishing a statutorily acceptable basis for
comparisons, the arbitrator finds that a police officer who has
completed a minimum of sixty (60) months of employment in that
capacity is to be considered a "five year" officer.
This finding is based on two facts: first, Article 19-
(Proficiency) of the Agreement states, at Level 6 of the
relevant scale, that Level 6 is attained "after (emphasis added)
five year's service". This clearly establishes that an officer
with more than forty-eight months (48) of service but less than
sixty (60) is not a "five year" officer but, rather, an officer
in (emphasis added) his/her fifth year of employment, in
accordance with the provision of Level 5 in Article 19, which
states "after (emphasis added) four year's service", In further
support of his determination, the Arbitrator submits, from his
personal experience, that when a child is born she/he is not
normally referred to as a one-year old at birth; but on the
first birthday, twelve months after (emphasis added) his/her
birth, the infant is, from the arbitrator's further experience,
deemed to be a one-year old. And based on that compelling
example, the arbitrator must agree with the Guild's position on
this issue. Therefore, I accept as valid the Guild's argument
that an Anacortes Police Officer, in order to be deemed a "five
yearN officer, must have sixty (60) - plus months of service,
and I will therefore use the contractual monthly Level 6 basic
rate of Pay for Anacortes Police Officers when comparing that
rate with the top step rate of the comparables.
The following table shows where the monthly salary of an
Anacortes police officer with an A24 degree at the 60+ month step
with both the City and the Guild's proposed increases would fit
within the 2004,2005 and 2006 wage settlement data of the
comparables.
In two instances where a comparable's last collective
bargaining agreement did not reach to year 2005 or 2006,i.e.,
Mukilteo and Tumwater, the Arbitrator has used the average
percentage of wage settlements of the other seven comparables to
provide workable figures for years 2005 and 2006, All salary
figures include an educational incentive adjustment for an AA
degree wherever applicable:
Comparables: 2004 2005
Mountlake Terrace $ 5046 Mountlake Terrace 5160
Monroe 4894 Monroe 5041
Arlington 4756 Arlington 4997
Mill Creek 4743 Average 4883
Average 4737 Tumwater (1) 4857
Mukilteo 4714 Ana.(+3.5% by Guild) 4856
Lake Forest Park 4708 Sumner 4845
Ana. (+3.5% by Guild) 4691 Mill Creek 4840
Sumner 4690 Lake Forest Park 4814
Tumwater 4668 Mukilteo (2) 4808
Anacor.(+2% by City) 4623 Anacor.(+2.25 by City) 4727
Port Angeles 4410 Port Angeles 4586
Anacortes variance
from average
(by City increases) - 2.45% -3.3%
Anacortes variance
from average
(by Guild increases) - .01% -.0055%
Comparables: 2006
Mountlake Terrace $ 5276
Arlington 5250
Monroe 5192
Port Angeles 5135
Average 5087
Tumwater (3) 5068
Sumner 5053
Ana.(3.5% By Guild) 5025
Mill Creek 4985
Lake Forest Park 4923
Mukilteo (4) 4904
Ana.(+2.25 by City): 4881 (5)
Anacortes variance
from Average (City) - 4.2%
Anacortes variance
from average (Guild) - 1.25%
(1) Not Settled - Assumes a CPI-W-based minimum increase of 2%
(2) Not Settled - Assumes a CPI-W-based minimum increase of 2%
(3) Not settled - Assumes a CPI-W-based minimum increase of 2%
(4) Not settled - Assumes a CPI-W-Based minimum increase of 2%
(5) This increase does not include the City's proposed .
additional 1% increase as a buy-out of the existing
shift differentials.
The following shows the total wage increases granted by the
comparables for years 2004, 2005 and 2006. As noted above,
estimates were made for the Mukilteo and Tumwater 2005 and 2006
increases :
Total 3-year
City 2004 2005 2006 CBA increases
Arlington 11.00%(1) 2.70% 3.07% 16.77%
Port Angeles 3.50% 4.00% 3.00% 10.50%
Sumner 2.40% 3.30% 4.30% 10.00%
Monroe 3.00% 3.00% 3.00% 9.00%
Tumwater 2.10% 2.00% 2.00% 6.00%
Mill Creek 2.00% 2.00% 3.19% 7.19%
Mountlake Terrace 2.75% 2.25% 2.00% 7.00%
Lake Forest Park 2.25% 2.25% 2.25% 6.75%
Mukilteo 1.20% 2.00% 2.00% 5.20%
Average increases
by all comparables
per year : 3.05 2.36 2.53
(1) Unexplained front-end loading.
From the above data, two facts become evident: First, the
Guild members need a catch-up increase to put them at or close
to the average of the comparables; secondly, the Guild's
proposed increases are not found to be excessive in light of the
City's current position within the list of the comparables and,
if implemented, would serve to bring the members' monthly wage,
by January 1, 2006, to within $52.00 per month of the average.
To award the City's proposed increases, or any lesser increase
would, in my estimation, exacerbate the City's already tenuous
position when matched to the comparables. In making this award I
have kept in mind the Cost Of Living criteria set forth in the
statute. Rather than burden the parties with accounting problems
associated with calculations of retroactive CPI applications, I
deem it appropriate to issue an award of simple percentage wage
increases.
From record evidence, and keeping in mind the governing factors
set forth in the statute, the Arbitrator accepts as appropriate
the wage increase proposed by the Guild of 3.5% effective
January 1, 2004 and 3.5% effective January 1, 2005. Effective
January 1, 2006, the wage increase shall be 4.5%. It is to be
understood that 2% of the january 1, 2006 wage increase is
generated by the City's buy out of shift premiums.
My reasoning for this wage award is based on the following:
First, from a comparability factor, the increases are
appropriate. With the 2006 wage increase, the top step officer's
wage will have been moved to within $13.00 of the average of the
comparables; second, any increase which would not significantly
improve the City's position on the list of comparables could
eventually result in a serious morale problem. Lastly, the
amount of increase is similar to the one accorded the City of
Anacortes Firefighters in their last collective bargaining
agreement. In making this award I also kept in mind the
previously addressed health care premiums issue which resulted
in Guild members now having to contribute $55.00 per month
toward dependent coverage.
I find the Guild's contention that a substantial wage
increase is paramount to the reduction of the City's problem
with qualified personnel recruitment to be without factual
basis. While the City does not make an outright claim of
inability to pay wage increases such as proposed by the Guild,
it does nevertheless present evidence that paints a potentially
grim fiscal picture. The Arbitrator's awards on the Court
Appearance issue and Health Care premium cost participation will
help alleviate some of the claimed financial burdens of the
City.
ISSUE 6 - SECTION 17.3 - SERGEAN!F WAGE DIFFERENTIAL
The Guild:
The Guild asserts that an examination of the current wages of
Police Sergeants show they are almost 13% behind other sergeants
under the Guild's comparables at the ten-year AA level. It
contends that its proposal to increase the sergeant differential
to 10% is not awarded, even with a base increase of 3.5%, they
would still be left 7% behind the market. The situation is not
much better even with the City's own comparables, as the
sergeants find themselves about 9.3.% behind at the 10-year AA
level when matched against those jurisdictions. As the situation
stands now, using the City's figures, the difference between the
top step of an officer's salary and the sergeant's first step
salary stands at 8.54%. Granting a 10% differential between
those two salaries would increase the sergeant's base by 1.5%.
This would help erode some of the remaining 7% market
differential between the City and the comparables, after
factoring in the 3.5% proposed overall base wage increase.
The City:
The sole justification for the Guild's proposal is to
"restore" a 10% differential between the top step officer base
wage and the entry level sergeant base wage that the Guild
claims has historically existed. Cx A.6. The undisputed facts
demonstrate that there never has been such a differential, and
therefore, there is nothing to "restore" with an additional
bump in wages. Moreover, there is no need to further increase
the sergeant wages as the difference between the top step
officer wage and the entry level sergeant wage is currently
higher than it has been historically.
Contrary to the Guild's suggestion, there has been no
reduction in the differential between the top step officer wage
and the entry level sergeant wage. In fact, the City asserts,
from 1993 through 1996, the top sergeant wage was lower than the
top step police officer wage. Over time, this has changed and
since 2000, the sergeant wage has been 8.54% higher than the
officer wage. Cx,.9.; Schuh, 11, 118. Thus, there is simply no
differential that was lost and needs to be "restored" as the
Guild urges the arbitrator to do here. Ignoring this, the Guild
relies upon a bookkeeping error that occurred in 1999 to argue
that the differential was somehow reduced. This is false. Prior
to 1999, the difference between the top step officer and entry
level sergeant pay ranged from a low of 2.27% to a high of
6.51%. In 1999, the City inadvertently gave the top step patrol
officers two COLA increases, reducing the difference to 4.878.
CX 6.9.1. The error was not discovered until 2000. Schuh,II,119.
The difference, however, was restored in that same year and has
continued at the 8.54% rate from 2000 to present. Cx. 6.9.1.
Thus, there is no need to further increase the sergeant pay to
"restore" this difference.
Recognizing that its proposal to "restore" a differential is
dead on arrival, the Guild changed (emphasis by City) its
proposal at the hearing from a request to increase the
difference between the top step police officer wage to the entry
level sergeant wage on the one hand, to the difference between
the top step of both classifications, on the other hand. During
bargaining, mediation and their proposal for interest
arbitration, the Guild focused exclusively on restoring the
alleged historical spread between the police officer top step
and the entry level sergeant wages. CX A.6 at 8. The Guild
changed its position during the interest arbitration and argued
for the first time to increase the difference between the top
step officer wage and the top step sergeant wage. Gx198; TR.,
III, 6-7.
The Guild's new proposal should be rejected for a number of
reasons. First the Guild's proposal contravenes the good faith
bargaining obligation of RCW 41.56. To dramatically change
positions and offer a new proposal as they have done here not
only prejudices the City but is an affront to the duty to
bargain in good faith. Recognizing that interest arbitration is
designed to be an extension of the collective bargaining
process, the City urges the arbitrator to denounce the Guild's
tactics and reject its untimely and belated proposal.
The Guild's proposal should also be rejected because the
evidence submitted to support it is based on a comparison
between the top officer and sergeant wages when this was not the
proposal submitted to the City during negotiations. The Guild's
last proposal to the City clearly requested a 10% differential
between the top step officer wage and entry level sergeant wage.
Cx. A.6. Unable to defend this proposal at the hearing, the
Guild submitted new data comparing the top steps in both
classifications. That this data is meaningless in light of the
Guild's proposal is perhaps best illustrated by the fact that it
shows that the City is paying more than a 14% difference between
the sergeant's top step wage and an officer's top step wage -
an amount that bears no correlation to the proposal submitted
during negotiations and relied upon by the City. Gx. 198.
For all these reasons, the City requests that the Arbitrator
deny the Guild's proposal to ignore the parties' bargaining
history and to add yet another increase to the sergeant's pay
scale.
DISCUSSION AND FINDINGS
On August 5, 2005, the Arbitrator received a thirteen-page
document from the Guild entitled:
Final proposal by Anacortes Police Guild Services
on open contract issues.
August 3, 2005.
On page eight(8) of that document, the Guild addresses
Section 17.4 of the Agreement (Wages). The last two paragraphs
of that proposal read as follows:
The Serueant's waue scale shall be increased to restore a 10%
step from the top of the police Officer's waue to the first step
of the Sergeant's waue scale. Whatever adjustment is made to the
first step of the Serueant's waue scale will also be made to the
second step.(emphasis by Guild).
At the hearing, the Guild explained its proposal on Section
17.4 as follows (from the transcript):
The Arbitrator: Proceed. What is the next number?
Mr. Cline: 198
The Arbitrator: This in volume 6, 198.(fn:42)
_________________
fn: 42 Gx. 198.
Mr. Cline: Ok, these are actually two separate
charts but both go on 198 and I'll explain each of them. These
are two charts that compare what we are calling the sergeant
differential to the guild(sic) set of comparables and the
city's(sic) set on comparables. The first one says guild(sic)
compares the Anacortes differential to the guild(sic) comps. And
the City one compares it to to the city(sic) comps. Now when we
are talking about the differential in this case what we are
talking about is the top differential and we will probably
address in our brief the issue of the bottom differential
because the wage proposal for sergeants is sort of keyed off of
that so to bring that bottom step up and then tie the top into
it. What we think normally of the differential is to say when a
sergeant gets to that top sergeant pay, when they are at that
top sergeant pay how much of that top sergeant pay is above the
top patrol officer pay and that is what we are thinking of as
the differential and in Anacortes the differential is 14
percent. Among the guild(sic) comparables the differential on
average is 20.2 percent and the differential on average amongst
the city's comparables is 18.2 percent and this is basically our
chief differential for a bump in that sergeants differential to
put it a little more in line with the market increase. In fact I
think under our proposal it doesn't need to be brought up to
these averages, just bump it part way up.
Mr. Schroeder: To make sure I follow the language
of your proposal on these exhibits, looking at the language you
propose differentials keyed off the first step of the sergeants
wage scale and not the top step is that right?
Mr. Cline: Correct, the way the proposal is
written and I think when we present our actual- the Arbitrator
asked us to put together what we would like to see as far as our
actual wage grid and when we do that we will present that so you
can actually see the number and Chris you did a map on it at one
point didn't you.(sic) I think we are proposing to bring that
bottom rate up to like 10 percent and then as it says, maintain
the existing spread between the entry level sergeant and top
sergeant which will bring it up to about 15 percent.
Mr. Casillas: Somewhere in there.
The Arbitrator: Where is your initial proposal on
that?
Mr. Cline: Volume II I think, volume I exhibit 2.
I understand Mr. Schroeder's question because the way the
opening proposal was originally written, with out(sic) seeing
the number it wouldn't be clear. Page eight of exhibit 2 and
that chart said 8 point something at the entry level. Anyway
this would bump the first sergeant step up to 10 percent, I
think it's about 8 point something.
The Arbitrator: For the top patrol wage?
Mr. Cline: Yeah, the top patrol wage. So you bump
that up and then accordingly I think there was only one other
sergeant step. When we present the grid to you it will make it a
little more clear.
.....
The Arbitrator: That's it for wages?
Mr. Cline: yes.(fn:43)
___________________
fn:43 Tr. III, 5-8.
My review of counsel Cline's elaboration on the the Guild's
proposal on this issue leads me to conclude that the explanation
given at the hearing describes a much different, and rather
confusing proposal compared to the one originally presented to
the City by the Guild prior to the hearing. First, as the City
points out, the original proposal involved the top step
(emphasis added) wage of a Police Officer as compared to the
first step (emphasis added) of a Sergeant's wage scale. At the
hearing, the Guild explained that what its original proposal
really meant was an attempt to close the gap between the top
wages (emphasis added) ) of a Police Officer and the top wages
(emphasis added) of a Sergeant using data compiled by the Guild
and which shows the average differential between those two
classifications to be around 18.2%.(Gx. 198) The somewhat
confusing aspect of the Guild's exhibit, supra, is that it shows
comparison data between a Sergeant's 10-year base (emphasis
added)wage and a Police Officer's 10-year base (emphasis added)
wage . At the hearing the Guild offered that the 10%
differential it was seeking between the Police Officer's top
step wage and the Sergeant's base wage would require only an
extra 1.5% increase to the Sergeant's wages since an 8.45%
differential already exists. By now stating that what it really
wants is to establish a differential between the top wages of
both classifications, it would appear that the Guild's latest
proposal would require a 6.2% increase to the Sergeant's top
wages to get up to average based on the fact that the City's
differential between the two classifications' is currently 14%
and the average differential of the nine accepted comparables
amounts to 20.2% - but the results of such calculations would be
erroneous because the data in Gx. 198 is based, as noted, supra,
on comparisons of base wages, not top wages.
My interpretation of the Guild's initial proposal is meant to
apply to the Sergeant's top step whatever increase is agreed
upon to bring the differential between the Police Officer's top
step and the Sergeant base wage to 10%.
Record evidence compels the Arbitrator to conclude that
there is factual support in the record of the City's allegations
that the Guild unexpectedly changed its position at the hearing
on issue No. 6, Wages, involving, specifically, it's proposal to
increase sergeants' wages. Further, I accept as valid the
City's contention that the Guild's last-minute attempt, at the
hearing, to revise its proposal on the the issue of Sergeant's
pay prejudices the City. I find persuasive the City's argument
that the record does not support the Guild's inference that a
10% differential needs to be restored. My award in this issue is
that the Guild's proposal is to be rejected.
ISSUE 7 - PAYROLL LAG TIME.
BACKGROUND
The current language of Section 17.3 of the Agreement reads as
follows:
17.3 Wages shall be paid by the Employer on a bimonthly
basis. Pay dates are on the 15th day of each month and
the last working day of each month.
The City proposes the following changes to that language
(the new language is highlighted):
17.3 Wages shall be paid by the Employer on a bimonthly
basis. Pay dates are on the 15th day of each month and
the last business day of each month. Should the City of
Anacortes implement a lag pay system, the Guild agrees
with 60 days prior notice to agree to a five - day lag.
If this were to happen, pay dates would be on the 5th
and the 20th of each month.
The City:
Adopting the proposed payroll lag will eliminate unnecessary
operational and legal issues. The City currently pays on the
15th and the last working day of each month. The City's proposal
would authorize it to implement a payroll lag system with 60
days prior notice so that it could pay for time worked from the
1st through the 15th on the 20th day of the month, and time
worked on the 16th to the end of the month on the 5th of the
following month. Cx7.1; Schuh, 11,122. The City's proposal
should be adopted because it would provide more certainty in
calculating the employee's pay for hours worked and would
promote internal consistency.
The current payroll system is flawed. Under the current
contract language, employees must submit their time sheets three
to six days before the end of each payroll period in order to
allow for sufficient time for payroll to process the time
sheets. Cx 7.2. As a result, employees must guess the amount of
time they will work in the last few days of the payroll period.
This creates both operational and legal concerns for the City.
First, the current system requires the employees to submit time
sheets recording time as worked before they have actually
worked those hours. Second, employees cannot always accurately
guess the amount of hours they will be required to work before
the end of the payroll period due to illness or overtime needs.
Chief King explained the situation as follows:
With regard to how we process time sheets, it
currently mean that we have to call for the
time sheets several days ahead of that pay
period and employees have to project out that
they are going to be working their days off and
assign them some overtime. We are unable to put
the actual overtime that may be worked at
the end of the pay period because you don't know
at the end of the shift if you are going to have
to work late or not. If an employee is sick,
if an employee decided they(sic) wanted to take
a day off after they turned in their time sheet
but before the end of the time period, we have
to play a little bit of catch-up accounting
on the next time sheet and so there is always
a pile of slips you the you have to work
through to get into the next one and so it
needs adjusting and sometimes it means a lot
of white out.
King, 11, 166-167. See also Schuh, 11, 122.
The City's current system also creates numerous reporting
problems. The City is required to report to the Department of
Retirement Systems the hours worked during any payroll period.
As a result of unanticipated overtime or illness, the hours
reported may not be accurate. Cx.7.2; Schuh, 11, 125. The City's
proposal would remedy these problems by allowing sufficient time
before payroll is processed to ensure all hours are accurately
recorded.
In addition, the City asserts, the vast majority of the
City's employee groups have approved this or a similar proposal
to adopt a payroll lag system. This includes the non-represented
employees, the Teamsters bargaining unit, the IAFF and the
noncommissioned police officers unit. This is the only (emphasis
added) group to not adopt the City's proposal. Schuh, 11, 124.
The Guild's only apparent concern regarding the City's
proposal is that it wants to reopen negotiations to negotiate
the impact of implementing a payroll lag system, thus holding
off the implementation of the system for all involved during
such negotiations. Rather than reopening negotiations on this
issue, the City drafted a proposal to address its impact by
including a 60-day grace period for onto the new payroll system.
This would allow employees time to notify their lenders and make
whatever adjustments are needed to the timing of their bills.
Along the same lines, the Teamsters approve a plan that would
introduce the payroll lag system over a period of ten (10)
months with a day being added every two months. The City would
make that same accommodation in this case if the Arbitrator
deemed it more appropriate. Tr., 11, 124-125.
For the reasons set forth above, the City of Anacortes
requests that the Arbitrator grant this proposal.
The Guild:
The City's proposal on pay dates and implementation of a lag
payroll system is disingenuous and should be rejected. At the
hearing, and likely in their post-hearing brief, the City
extolls the virtue of the lag payroll system, much of which the
Guild does not necessarily dispute, and then argues that their
proposed language is necessary to implement such a system. This
is yet another diversionary charade offered by the City.
A close reading of the current contract language and the
City's proposed language reveals two important defects in the
City's arguments. One is that the current language already
allows the City to implement a lag payroll system when
desired.(emphasis added). In reality, the City's proposal is
merely a power grab to eliminate the Guild's right to engage in
impact bargaining if the City chose to implement a lag payroll
system. For these reasons, the City's proposal should be
rejected. The minimal protection that the Guild retains,
however, with the present language is a right to bargain impacts
of a decision by the City to change paydays. The thrust of the
City's proposal would eliminate the minimal right the Guild has
retained and give the City unfettered discretion to make
changes, compounded by no obligation to discuss the impacts of
the change. Forcing the Guild to accept such a broad waiver
would be contrary to clearly established PERC case law which
always recognizes impact bargaining rights even when management
retains the right to implement the decision to change.
Ironically, a City of Anacortes PERC case from over twenty
years ago established the principle that the timing of when a
worker is paid is an issue directly impacting wages and is to be
considered as mandatory subject of bargaining.(fn:44) In that case, the
hearing examiner noted that "the Commission determined that the
time when a worker is to receive his pay is so closely related
to how much he is paid that it reasonably falls within the term
"wages", and is therefore a mandatory subject for collective
bargaining under RCW 41.56030(4).''(fn:45)
_________________
fn:44 City of Anacortes, Decision 1493 (PECB, 1982)
fn:45 Id. at 6 (emphasis supplied)
Apparently in the wake of that decision, the Guild made a
concession to the City actually allowing it to change its
payroll system upon notice, but did not waive its right to
engage in minimal after-the-fact impact bargaining. In the
present matter, likely recognizing the mandatory nature of this
issue, the City seeks, through arbitration, access to a broad
waiver in the agreement to implement this new system without
having to negotiate any aspect of the decision. In contrast,
all the Guild seeks is to maintain the miniscule right it has
now under the current agreement to negotiate the impact of a
decision by the City to implement a payroll lag system. The
current language allows the City to change the system but also
ensures that any impact on the employees, such as adjustments in
bills or bridge loans during the adjustment period, will be
negotiated.
The current language seems to be the bare minimum required by
PERC as expressed in the previous PERC pay lag decision. There
is no need for this previous agreement to be disturbed by our
arbitrator. To undo that agreement would wipe out what little
remains of the Guild's impact bargaining rights.
DISCUSSION AND FINDINGS
The City of Anacortes's current payroll system, as it
applies to the Police Services Guild, appears to be rather
archaic, even if all available computer technology is
incorporated in its design. The City's contention that its
proposal would cure many of the problems inherent in the
existing system has merit. From the record, I conclude that
there is some agreement between the parties as to the potential
impact of changing payroll dates, i.e., rental obligations, loan
payment due dates, direct deposit agreements, etc.
In its post-hearing brief, the City alludes to the fact that
it had proposed a specific change to the existing language of
Section 17.3 of the Agreement, specifically, that it would agree
to a 60-day prior notice of a five-day lag implementation. The
Guild, in its post-hearing brief, asserts that it does not
necessarily dispute the administrative value of a payroll lag,
but the potential residual effects of a different payroll date
on the personal life of its members is an issue it would wish to
address by exercising its perceived right to engage in impact
bargaining.
From my analysis of the record on this issue, I find that
the City's stated purposes for proposing a payroll lag system
are valid. Once the new system is in place, both the employees
and the City stand to benefit from the change. I am not of the
opinion that the City's proposal provides the best lead-in to
the new system, although the 60-day notice would serve to
alleviate some the possible financial problems that could be
encountered by the employees. The proposal accepted by the
City's Teamsters unit and as described by witness Schuh in her
testimony,(fn:46) appears to provide a better, although slower, method
of transitioning to the new system. I therefore award that the
language of the current Section 17.3 of the Agreement be
replaced with that which was accepted by the Teamsters unit and
which provides, inter alia, a 60-day notice and a 10-month
implementation period with the pay periods moved one day every
two months in order to facilitate the adjustment.
_________________
fn:46 Schuh, II, 124-125
ISSUE 9 - LONGEVITY PAY
The Guild seeks to modify the longevity Pay section of the
Agreement (18.2) as follows:
For employees, longevity pay shall start after five
years of employment in accordance with the following
schedule:
Complete Months of Service Longevity Percentage
60 1%
90 2%
120 3%
In assessing whether to add new premiums or enhance existing
ones, arbitrators will certainly look at the overall wage,
including all available premiums. On the question of whether
premiums should be maintained on a flat dollar amount or a
percentage amount, arbitrators have repeatedly ruled in favor of
unions, holding that they rise automatically as the base wage
rises. As a rationale for this position, arbitrators have
offered is that it will prevent the issue from having to be
constantly renegotiated in the future.(fn:47)
_______________
fn:47 City of Bremerton(Police)(Axon 1998); City of Bothel(Fire) at 15-17(Krebs 1987)
The Guild asserts that arbitrators have granted or increased
longevity premiums where evidence supported that. In this
instance there are two chief reasons supporting the Guild's
proposal for an increase in the longevity premium:(l) the
comparability data strongly supports an increase;(2) the senior
officers who have remained with the department provide a
demonstrated value to the City. Additionally, for reasons
articulated by other arbitrators, this premium should be
instituted as a percentage of the base monthly wage, as opposed
to a flat dollar amount.
Beyond the problem that the current longevity program is
available only to officers hired before 1983, the fact that this
premium is expressed as dollar amount instead of a percentage
provides an good example of the problems generated by expressing
premiums as a flat dollar amount. In 1984, the value of the
current premium as a percentage of the officer's total monthly
wage was around 2.1%. In 2003, with the dollar amount remaining
the same, the premium is now worth only 0.9%.
The City contends that the Guild seeks to reintroduce
longevity into the contract despite the parties' agreement
several years ago to buy it out, and to dramatically increase
the cost of this premium pay by basing it on a percentage of pay
rather than a flat dollar amount. The Guild's proposal should be
rejected because it ignores the parties' bargaining history and
creates an uncontrollable expense for the City.
Initially, the parties' agreement provided for a longevity
premium of two dollars a month per month of service up to a
maximum of $40.00 a month. D'Amelio, 11, 56. Other City
employees who were eligible for longevity were also given the
fixed rate, with a maximum of $40.00 per month. Schuh, 11, 126.
During negotiations for the 1983-85 agreement, The City agreed
to buy out the longevity premium with an increase to the base
wages for all officers hired after 1983. O'Leary, 11, 64.
Officers hired prior to 1983 would continue to be eligible for
the longevity pay as it was then in effect. Id; Cx.9.2. Five of
the bargaining unit members remain eligible for longevity pay
under the parties' agreement because they were hired by the City
prior to 1983. The guild's proposal to reinsert longevity into
the parties' contract ignores the parties' agreement to
eliminate longevity altogether on a prospective basis.
In an analogous case, Arbitrator Nelson held that it was
inappropriate to use interest arbitration to reintroduce
longevity where the parties had previously agreed to its removal
at the bargaining table. According to Arbitrator Nelson:
while (the parties) are free to negotiate (longevity)
back in if experience has taught them that its removal
was unwise, it would be inappropriate to use the
interest arbitration process to acquire this result.(fn:48)
_______________
fn:48 City of longview,) (Nelson, 2001) (Attachment EE) at 20,
As set forth in more detail below, the record is devoid of
of evidence that the parties' agreement to remove longevity was
unwise, as demonstrated by the fact that the City has had no
difficulty attracting and retaining qualified officers. In fact,
evidence shows just the opposite. Since 1994, only six officers
have left the City--two of whom have since returned to work for
Anacortes.(fn:49) he other four, one left the law enforcement
profession altogether and one moved to Maine to be close to his
family.Id. As noted by Arbitrator Axon, increasing longevity pay
is not warranted where the record indicates that the employer
has had no difficulty in attracting or retaining employees. (fn:50)
________________
fn:49 Cx. 6.8.1.K;in g, II, 162-164
fn:50 Payne Field Airport, at 32 (Axon,2005) (Att, Y)
The Guild's proposal to tie the longevity premium to a
percentage of their wage would place the officers far above
their counterparts throughout the City. All other City employees
who receive a longevity pay have the same longevity pay of a
flat dollar amount to a maximum of $40 a month that was bought
out of the Guild contract in 1983. Schuh, 11, 126. No employee
group receives a longevity premium based on a percentage of
their wages as the Guild is requesting here.Id. Thus, the
Guild's proposal to reintroduce longevity into the parties
contract and increase it to three percent of their wages cannot
be justified in light of what the other groups are receiving.
Perhaps more importantly, however, this interest arbitration
proceeding should not be used to upset the agreement reached by
the parties on this issue. Arbitrators have rejected similar
proposals such as the one asserted here by the Guild, and have
left the issue of longevity to be resolved by the parties at the
bargaining table as the parties did here in 1983. As Arbitrator
Wilkinson observed, longevity is better left to the parties’
negotiations:
As to how to value other skills, duties, and
contributions, those are determinations best
made by those with knowledge of how valuable
they are to the service provided by the
employer. In other words, it is something
better left to negotiation.(fn:51)
_________________
fn:51 City of Redmond, (Wilkinson, 2004) (Att.V)
In contrast to the Guild‘s contentions, Arbitrator Axon aptly
recognized that basing premium pay and specialty pay on a fixed
dollar amount rather than a percentage of base pay is more
appropriate because it allows the parties to negotiate the
value of that premium or specialty.(fn:52)
______________________
fn:52 Payne Field Airport, at 32 (Axon, 2005) (Att. Y)
For all of these reasons, the City requests the Arbitrator
reject the Guild‘s proposal and maintain the current contract
language.
DISCUSSION AND FINDINGS
The ample record of arbitral opinion espousing the concept
of longevity as a viable and useful premium establishes, with a
high degree of certainty, that under different circumstances,
the Guild‘s proposal, or some modification of it, would be given
serious consideration. But having analyzed all of the
contentions and arguments presented and from my study of the
cited awards, I am in total agreement with the holding of
Arbitrator Nelson in the City of Longview case. Id, While RCW
42.56 makes it abundantly clear that interest arbitration must
be regarded as an extension of the collective bargaining
process, it also expects from triers of fact consideration of
relevant stipulations of the parties.(fn:53) Although many agreements
are reached during the process of collective bargaining that are
subsequently renewed or modified in later negotiations, it is
significant here that no evidence was presented indicating that
some attempt was made at the bargaining table, since 1983, to
revive the issue of longevity. I find it significant also that
the City's argument that the agreement reached between the
parties during the 1983 negotiations on the issue of longevity
should not be disturbed by interest arbitration was not rebutted
or even referenced by the Guild in its brief.
_____________________
fn:53 RCW41.56.465 (1) (b)
The buy-out type of settlement reached on longevity may,
at a later date, be modified by the parties, but based on my
thorough analysis of prior arbitral opinions on this issue, I
conclude that it would be inappropriate to use the interest
arbitration process to disturb that settlement. I must
therefore reject the Guild's proposal. The language of Section
18.2 shall remain as is in the Agreement.
ISSUE 10 - FRINGE BENEFITS
SECTION 18.3 - FRINGE BENEFITS
Background:
The current language of Section18.3 reads as follows:
Shift differential shall be aded to the basic monthly
wages of any Employee working during Swing Shift or
Graveyard Shift as follows: 60 cents per hour for Swing
Shift and 75 cents per hour for Graveyard Shift.
The City proposes to eliminate the Swing and Graveyard shift
premiums and replace them with an additional 1% increase to
wages.
The Guild proposes three percent (3%) of top-step hourly
patrol wage for each hour of swing shift work and four (4%) of
top-step hourly patrol wage for each hour of graveyard shift
worked.
The City:
The City contends that the payment of shift differential in a
work environment such as law enforcement where employees work
24/7 is not supported by the comparable employer factor. The
City's proposal would not allow the City to reap the savings
from the elimination of this practice, but, rather, it would
funnel the money into all of the bargaining unit employee's
paychecks.
The City asserts that none of its eleven comparables provide
shift differentials and removing them would bring the City in
line with them. CX. 10.3. Of the Guild's comparables, only Mount
Vernon offers shift differentials and it is significantly less
than the premium paid by Anacortes. Gx.74. This amounts to only
one (1) of the fifteen (15) Guild comparables that have any sort
of shift premium. As Chief King testified, Anacortes is the
first department that he has been associated with in his thirty
years of experience in law enforcement that has a shift
differential.(fn:54)
__________________
fn:54 King, II, 126-128
Police work is by definition work that will require twentyfour
hour service. Id. Thus, this is not a situation where an
employer has voluntarily established shift work to serve its own
benefit, therefor justifying a premium for that work. Moreover,
the City's unique practice of providing a shift differential
makes wage comparisons among its comparables more difficult.
Although shift differential is clearly an increased cost, it is
not reflected in the officers' base wage. Thus, in comparing the
officers' wages to the wages of the City's comparables, the City
does not get any credit for this additional cost.
Ignoring the above comparability data, the Guild tries to
justify its proposal to stand alone and continue to collect
shift premium by relying upon allegedly adverse effects of shift
work. The Guild's argument, however, continues to ignore the
fact that police departments in general do not pay shift
premiums in recognition of the fact that they are bound to
provide 24-hour service. In addition, the Guild's argument
ignores the fact that many employees, including members of the
Anacortes unit, choose swing or graveyard shifts to better
accommodate their personal schedules.(fn:55) Thus, the City is not
facing problems attracting officers to serve on swing or
graveyard shifts.
__________________
fn:55 Cx. 2.5; King, Ill, 148.
The City's offer equates to $12,751 being added to the Guild
members' base wage and will compound with future wage increases.
The City's proposal would result in a significant bump in the
wages of all officers, including the detectives, and DARE
officers, who previously never were assigned shift work.
For all of these reasons, the City requests the Arbitrator
adopt its proposal on the shift differential.
The Guild:
The Guild is in agreement with the City on the fact that
shift work is a necessary creature of any 24/7 operation and is
a reality understood by all persons entering this profession.
But, it contends, regardless of the necessity, it still creates
substantial hardships for patrol officers, both on an individual
level and on their families. Working nontraditional hours of the
day is a major disruption, and as such, deserves an additional
form of compensation. The City's proposal to eliminate this
premium should be rejected.
The need for a revamped shift differential is demonstrated by
the many academic and medical articles outlining the safety
hazards and the general health effects associated with shift
work.(fn:56) Studies of shift-workers have found that the number one
reason individuals leave a particular profession is due to the
rotating shifts.(fn:57) The adverse effects on police officers for
filling shifts with nonstandard hours are not debatable. While
additional compensation for these shifts does not lessen their
adverse impact, it reflects a recognition on the part of the
City as to the drawback of this important work and rewards the
individual officer for making that sort of sacrifice.
______________________
fn:56 Gx. 2; 191 ;196.
fn:57 Id.
The Guild's proposal at issue here to raise the premium is
similar to the issue as it was raised in a recent Wenachee
arbitration decision presented by the same counsel. (fn:58)
_______________________
fn:58 City of Wenatchee(Police)(Savage, 2003).
Although in that case the arbitrator declined to set the
premium on a percentage basis, she did raise the premium and
rejected the employer proposal to eliminate the premium.
DISCUSSION AND FINDINGS
I find persuasive the City's argument that none of its
comparables and only a few (Mt. Vernon and Skagit Co.) of the
Guild's fifteen (15) comparables provide a shift differential.
I note also that none of the accepted nine comparables offer
shift differentials. I find valid the City's contention that
converting the hourly differential to a percentage of wages
will, by compounding, increase by whatever general wage
increase is negotiated from year to year and that such an
increase, as small as it might be, would benefit all employees.
I find no factual basis for the Guild's implicit notion that
Anacortes Police Department shift work has caused police officer
recruiting hardships to the City or that a police officer might
have left the Department for health reasons due to shift work.
There is no controversy over the proposed conversion from a perhour
stipend for swing and graveyard shifts to a percentage
payment approach, since the Guild is proposing its own
percentage increases.
My review of the evidence and arguments on this issue
and especially of the provisions, or lack thereof, on the issue
of shift differential in the collective bargaining agreements of
the nine accepted comparables, cause me to find that the Guild's
proposed percentage increase as a shift differential is
excessive, and, conversely, I find the City's proposed 1% shift
differential buy-out to be inadequate. I have no intention of
considering a "split-the-difference'' approach to the settlement
of this issue. I therefore award that the buy-out amount of the
existing shift differential should be a 2% increase to the
general wage schedule, effective January 1, 2004.
ISSUE 11 - SECTION 18.4 -PREMIUM PAY
BACKGROUND :
Section 18.4 of the Agreement reads as follows:
Premium pay of $130.00 per month shall be given to
employees assigned as Detective, DARE Officer, or
Patrol Field Training Officer, however, a Field
Training Officer must serve as a FTO for at least
ten days in a calendar month in order to qualify
for premium pay for that month. An individual may
collect only one premium pay upgrade at any one
time.
The City proposes to increase the Detective's premium pay
from $130.00 per month to $180.00 per month. This proposal is
tied to the City's proposed elimination of the current Detective
Clothing Allowance provided for under Section 18.6.2 of the
Agreement. The proposed elimination of the Detective's Clothing
Allowance was certified by PERC as issue No. 13 for the purpose
of this interest arbitration.
Article 18.6.2. reads as follows:
Detectives shall receive a clothing allowance of
three hundred twenty-five dollars ($325.00) each
six months and shall be provided with holster, cuff
case and shell case while on duty. A detective
assigned to a non-uniformed unit for the first time
shall receive two clothing allowance payments in
advance at the commencement of the assignment which
shall be a credit against the first two clothing
allowance payments which would otherwise be paid to
the employee. As a condition of receiving each
allowance payment, employees may be required to
provide receipts for purchase of appropriate
detective clothing. Such receipts may be used in
the year the clothing was purchased with any excess
receipts over the annual clothing allowance usable
in the two years following the purchase of the
clothing.
The City:
Under the City's proposal, the $130.00 per month specialty
pay to employees assigned as DARE Officers and FTO Officers
would be maintained since the amount was just increased by 30%
in the previous collective bargaining agreement, from $100.00
per month to $130.00 per month. The increase of the Detective's
premium to $180.00 per month is linked to the elimination of the
Detective Clothing Allowance in Section 18.6.2. of the
Agreement. The City's proposal of the $50 monthly specialty pay
increase for Detectives is motivated, first, by the fact the
IRS has recently clarified that clothing allowances such as
those for detectives constitute taxable earnings to employees
and, second, the Department would rather not be in the "clothes
police" business.
The City's current practice of paying a separate clothing
allowance requires the Police Chief to review officers' clothing
purchase receipts and determine whether they should be
reimbursed as detective clothing or not.(fn:59) The City would rather
simply pay the increased Detective premium in recognition that
detectives will have to purchase clothing for work.(fn:60) This would
avoid the need for officers to submit receipts in order to
obtain reimbursement, and the Chief from having to review and
approve or reject those receipts.
__________________
fn:59 Schuh, II, 1 29
fn:60 Cx. 11.2. King, II, 168-169.
Historically, the City and the Guild have been able to
negotiate an agreement on increases to the specialty premiums,
but it has always been from a flat dollar amount. In fact, as
recently as in the last negotiations, the City agreed to
increase the specialty premiums from $100.00 to $130.00 per
month.
The City resists the Guild's proposal to significantly
increase the specialty premiums and convert them to percentages
of base pay. The Guild's proposals reflect significant roll-up
costs to the City. Transitioning to a percentage increase from a
flat rate compounds the impact to the Police budget. Any time
the base wage increases, the specialty pay would also have a
corresponding increase. Arbitrator Axon correctly rejected a
union's proposal to move from a $90 EMT premium to 2% of the
firefighter's wage in the Paine F i e l d Airport arbitration,
noting that "by using a fixed dollar amount, the parties can
easily determine the value of possessing an EMT certificate.(fn:61)
____________________
fn:61 Paine Field Airport, at 32-33 (Axon, 2005) (Att. Y)
For the same reason, the City requests the arbitrator reject
the Guild's proposal and allow the parties the opportunity to
negotiate the value of these premiums at the bargaining table.
The Guild's proposal to expand specialty premiums to apply to
Emergency Vehicle Operations Force (EVOC) , range officer,
evidence technician, and marine and bike officers should also be
rejected because these positions do not include the broad range
of responsibilities that typically warrant a specialty pay. For
example, the EVOC officer trains other officers on driving
police cars in police pursuits for about two weeks a year.(fn:62) The
time commitment of an EVOC officer is in stark contrast to the
time commitment of other positions which the City believes
warrant a premium pay, such as the DARE officer.
The DARE position is a full time forty-hours a week position,
which warrants a premium pay. Id.
____________________
fn:62 King, II, 170-171
The same is true of a range officer. Two days every quarter
the officers' firearm qualifications are tested. The testing is
performed by the range officer. Because the City has three range
officers who rotate this responsibility, each officer is only
spending two days every nine months performing this assignment.
Again, the City contends this position does not warrant a
premium pay due to its minimal commitment above the position's
regular duties. (fn:63) In addition, the City has had no difficulty
attracting officers to work at the range during these testing
exercises. Thus, there is no argument that a premium is
necessary to attract and retain volunteers for this assignment.
____________________
fn:63 King, II, 172-173
The Guild's request for premium pay for a marine officer is
also not justified by the time commitment and responsibilities
of this position. The City has eight officers who patrol the
water about two hours a month, unless there is a special event.(fn:64)
This time commitment is simply not comparable to the full-time
responsibilities of DARE officers and detectives.
____________________
fn:64 King, II, 173-174
The Guild's proposal ignores the reality of these positions
and it simply casts a broad net, hoping to catch some additional
pay. This perhaps is best illustrated by its request for
premium pay for an evidence technician. There is no evidence
technician in the bargaining unit. While some officers are
trained to perform bike patrol, where and when circumstances
warrant it, this is not a regular position or need.(fn:65)
____________________
fn:65 Id.
The Guild's proposal should be rejected in light of the
comparability data. With isolated exceptions, the City's
comparables do not include premium pays for EVOC, range officer,
evidence technician, marine or bike officers. Cx. 11.5
The Guild:
The Guild asserts that its review of relevant comparable data
indicates an increase in the premium pay amount to 3% per month
and a conversion to a percentage basis are justified. Its
rationale for the requested conversion from a flat dollar to a
percentage basis is that such a basis would avoid having the
Anacortes officers fall further behind the market.
Along with the need to raise the amount of premium based on
the comparables is the need to convert this to a percentage
system. Looking again at these same premiums, of the six
agencies that have a premium for the DARE officer, all six of
them define the premium as a percentage of the base wage.
Similarly, of the 14 agencies that provide a premium for
detectives, 12 of them do so under a percentage based system,
which is the same number of agencies that provide for a Field
Training Officer premium. This data overwhelmingly supports a
move with respect to Anacortes from a flat dollar amount to a
percentage system.
The 3% proposed by the Guild in this case is still less than
the average of the comparables, but it will allow for a slight
catch-up. The City has implicitly recognized that this Guild has
fallen behind its comparables under the existing premiums by
proposing to increase the amount of the premium by $50, but in
failing to propose this as a percentage based system, that
proposal will only carry forward the underlying condition that
has created the present disparity.
The Guild has also put forward a proposal to add several new
specialty that would be eligible for the premium pay. The reason
for this proposal is that among the 15 Guild proposed
jurisdictions, the average number of specialty assignments that
receive a premium in these various departments equal 4.3
assignments. This is an important figure because it means that,
on average, these other jurisdictions provide for one more
assignment for which officers can become eligible, which equates
to an additional opportunity for extra compensation.
DISCUSSION AND FINDINGS:
The City's current premium pay system of $130.00 per month
amounts to slightly under 3% (2.8%) of the top step officer's
monthly wage. Of the nine comparables used by the Arbitrator in
this case, eight of them provide a percentage based premium pay
system for FTO Officers. One has a flat dollar system. The
premium pay under those systems averages 4%. For Detectives,
seven of the nine comparables provide an average premium pay of
4.4%. The Lake Forest Park comparable allows a 10% premium pay
to Detectives. The average without that comparable is 3.52%. Of
the nine comparables, only two provide premium pay for DARE
Officers and only three provide such premium pay to Range
officers. (fn:66)
____________________
fn:66 Cx. 11.5
The City's stated reason for proposing to buy-out the
Detective's clothing allowance is a valid one for it would be of
benefit to both the City and, from a tax standpoint, to the
Detectives. The reason may be valid, but the proposed buy-out
amount is not. Under the current provision of the Agreement,
Detectives receive two $325.00 payments per year for a total of
$650 as a clothing allowance. The City's offer of $50 a month
amounts to $600 a year.
The Guild offers nothing of probative value in support of its
proposal to add several new specialty assignments other than the
fact some of its comparables may be providing other assignments
with some form of premium pay. In addition, its proposal to add
the assignment of evidence technician borders on the ludicrous
for the Guild's bargaining unit does not have an evidence
technician. I therefore reject that aspect of the Guild's
proposal.
As to the buy-out of the detective's clothing allowance, the
Guild offers two reasons for its opposition to the City's
proposal: First, it contends that at least half of its
comparables have a yearly plainclothes premium that averages
$600 per annum which is approximately as generous as that of
Anacortes' $650 amount.
From the evidence before me, I find as follows:
1. Issue # 11 - Spec alty Pay. The resolution of the controversy
as to whether the current flat dollar premium pay system should
be left in place or be replaced by a percentage based system is
best left to the parties to resolve at the bargaining table
because of the inevitable compounding that would result from a
change to a percentage based system.
2. Issue # 13 - Detective Clothing Allowance. The City makes a
persuasive argument that, in light of the IRS' determination
that allowances for detectives' clothing are now subject to
federal tax, it would be in the officer's interest to
purchase whatever clothing is deemed appropriate to the job from
his own pocket and not have to depend on the Chief as to whether
or not the clothing purchased and the receipts are acceptable. I
accept the City's proposal except for the buy-out amount
offered. The current yearly detective clothing allowance amounts
to $650. I therefore find that an additional $55 added to the
monthly premium pay of $130 would be more appropriate as a
clothing allowance because the yearly amount would and would
better approximate the current $650 allowable to detectives.
Therefore, I award that the language of Section 18.4 shall
be as follows:
18.4 Premium pay of $185.00 per month shall be given to
employees assigned as Detective. Premium pay of $130.00 per
month shall be given to employees assigned as DARE officer, or
Patrol Field Training Officer, however, a Field Training Officer
must serve as a FTO for at least ten days in a calendar month in
order to qualify for premium pay for that month. An individual
may collect only one premium pay upgrade at any one time.
I further award that the language of Section 18.6.2 -
Detective Clothing Allowance be stricken from the Agreement
because the clothing allowance provision contained therein has
now been incorporated into the Detective's premium pay in
Section 18.4.
ISSUE # 12 - SECTION 18.5 - EDUCATION INCENTIVE
BACKGROUND:
SECTION 18.5 Reads as follows:
18.5 Education incentive pay shall be provided to sworn police
personnel holding either a Bachelor's or a Master's Degree.
Those holding a Bachelor's degree will receive $60.00 per month
and those holding a Master's degree will receive $80.00 per
month. Employees may only collect the incentive pay for their
most advanced degree, not for a combination of degrees.
The Guild:
The Guild proposes to change Sec. 18.5 to read:
18.5 Education incentive pay shall be provided to sworn police
personnel holding either a Bachelor's or Master's degree. Those
holding an AA degree shall receive 2%, a Bachelor's degree will
receive 4% per month and those with a Master's degree will
receive 6% per month. Employees may only collect the incentive
pay for their most advanced degree, not for a combination for a
combination of degrees.
The Guild asserts that of the 19 Guild and City comparables,
17 of them offer some type of education premium, and within that
number, every single one of them offers a premium at the AA
degree level, and a handful even offer a premium for just 45 or
90 credits of course work.(fn:67)Anacortes is the only exception to
those jurisdictions offering an education premium by not doing
so at the AA level. Id.
_____________________
fn:67 Gx. 190
In terms of value of these premiums in other jurisdiction,
within the Guild's list of comparables, the average at the AA
level is approximately 2.3% The current Anacortes $60 per month
premium at the BA level translates into some 1.3% of the base
monthly wage, which is about 1% below the average of the
comparables at the AA level and almost 3% behind the BA level.
The disparity is not that much less even when compared to the
City's proposed comparables, with Anacortes behind by over 2%
at the AA level and over 2.5% at the BA level.
It is expected that the City will argue that because an AA
degree is a requirement of the job for entry level candidates
that a special premium for it would be inappropriate.
Nevertheless, the City's own Civil Service rules prove that this
is not correct. For those officers with out an AA degree or
higher, they can still meet the minimum qualifications with just
a high school diploma and one thousand hours of reserve police
service.(fn:68) Not all officers have an AA degree, nor is it
necessary to earn one in order to get hired in Anacortes.(fn:69) An
incentive to reach, and then reward, this level of education is
appropriate.
_________________
fn:68 CX. 12.3
fn:69 CX. 12.5
The City:
The City contends that the Guild's proposal is unreasonable
because it attempts to provide a premium pay for simply meeting
the minimum qualifications, exponentially increases the cost of
the education incentive. Currently, all entry level officers
are required to have an AA degree. Therefore, the City opposes
this significant change to the contract because it does not
believe paying a premium for having a AA degree is appropriate
given that this is a long standing minimum requirement for all
entry level officers.
The reality is that the world is a far different place than
it was twenty years ago in terms of officers' educational
requirements. The guild introduced articles from the 1960 and
early 1980s for the proposition that extra compensation should
be paid as the profession becomes educated. However, from 1960
through the 1980s, when those reports were written, officers
were not required to have an AA degree to meet the minimum
qualifications. Over the last few decades, this has changed. The
Department now requires all entry level officers to have an AA
degree. There is no support for the Guild's argument that
premium pay is justified by simply by meeting the minimum
qualifications.
The Guild's proposal exponentially increase the current
premium by basing it on two to six percent of the officer's base
wage depending on the educational level obtained. In this
contract year alone, officers would receive a 240 percent
increase in the education premium incentive for holding a
Bachelor's degree and 283 percent for holding a Master's degree.
The cost of such an exorbitant increase in this premium alone
would be substantial as more than 50 percent of the current
police officers receive an educational premium. In fact, the
Guild's proposal would cost more than $71,000 during this
contract alone. This significant impact on the budget would only
continue to grow as the premium is tied to all future wage
increases.
The Guild alleges that a substantial majority of the
comparable jurisdictions provide for an education premium for
officers with AA degrees - the Guild's analysis, however is
misleading because it does not account for two important
distinguishing factors. First, unlike Anacortes, a number of the
comparable jurisdictions do not require AA degrees. Thus, paying
an education premium for holding an AA degree in those
jurisdiction would not be inherently inconsistent. Second, a
number of the jurisdictions the Guild relied upon as "evidence"
that the comparable jurisdictions supported a premium pay for AA
degrees actually limit the premium to degrees in the area of
criminal science. Finally, the Guild's data is misleading at
best as it again compares Anacortes 2003 wages and education
premium to the wages and premium offered by the comparables in
2005.
For these reasons, the City requests the Arbitrator reject
the Guild's proposal and maintain the status quo on the
education premium.
DISCUSSION AND FINDINGS
The Guild provides compelling evidence that the majority of
Guild and City comparables have a premium pay benefit for
holders of an AA degree. In fact, Guild Exhibit 190 shows that
all nine of the accepted comparables provide such a benefit,
most under a percentage system, two (Munroe and Port Angeles)
under a flat dollar system.
I accept the City's assertion that, for its own purposes, it
might simply have chosen to require an AA degree as a minimum
entry education requirement, although one wonders how three
officers (Farrel, Alves and Perkins) were hired since the City's
own exhibit indicates they have no degrees. (Cx, 12.5) That an
employer is free to establish whatever legal minimum entry
requirements it deems appropriate is undisputed. The City's
argument that it should not have to pay a premium for hiring an
applicant who holds a AA degree when an entry-level hiring rate
might have been established taking the AA degree requirement
into consideration has merit. That philosophy, however, does not
address those officers who are already on the payroll and who
hold an AA degree (Korterud, Fuller and Stavig). I find no
evidentiary basis for the City's assertion that its entry-level
officer's wage is specifically geared to attract and retain
candidates with AA degrees.
Evidence clearly shows that providing a premium pay benefit
for holders of an AA degree is a common practice among all of
the accepted comparables. Keeping the criteria of RCW 41.56.465
in focus, I conclude that the City should provide, as does all
of the comparables, a premium pay benefit for holders of an AA
degree already on the payroll and to any other future hires who
hold an AA degree. As to the method of paying the premium, I
will leave to the parties the task of negotiating an agreement
as to an acceptable system, either flat dollar or percentage, to
be put in place at the time. Using the existing dollar spread in
the Agreement, I find that an premium of $40 per month is
appropriate. I therefore award that the language of Section 18.5
of the Agreement is to be modified to read as follows:
18.5 Education incentive pay shall be provided to sworn
police personnel holding an AA, Bachelor's or Master's degree.
Those holding an AA degree will receive $40.00 per month; those
holding a Bachelor's degree will receive $60.00 per month and
those holding a Master's degree will receive $80.00 per month.
Employes may only collect the incentive pay for the most
advanced degree, not for combinations of degrees.
SUMMARY OF AWARDS
Having kept in mind the applicable statutory €actors
described in RCW 41.56.465, the City's financial status and its
position within the group of jurisdictions found to be like
employers of like personnel, the Arbitrator made the following
awards:
ISSUE #l:
Article 4.4. Municipal Court Overtime
The language of Section 4.4 shall remain unchanged.
ISSUE #2
Article 4.9 - Shift Bidding
The city's proposal on shift bidding is rejected.
The Guild's proposed language on shift trades is rejected.
There shall be no change to the language of Article 4.9.
ISSUE #3
Article 7 . 5 (new) NONESSENTIAL PERSONNEL ASSIGNMENT ON
HOLIDAYS
The language of the new Section 7.5 of the Agreement shall
read as follows:
7.5 Management maintains the right to determine the
number of nonessential personnel to work on Holidays.
Nonessential personnel is hereby defined as detectives,
DARE and crime investigation personnel.
ISSUE #4
Article 9 - SICK LEAVE BUY BACK
1. The Guild's proposal on sick leave buy back is
rejected.
2. The existing language of Article 9.4 shall be
modified as follows:
9.4 Sick leave cannot be taken before it is
actually accrued. There shall be no sick leave
buy back from the period of January 1, 2004 to
February 28, 2006.
The arbitrator awards the following new Article
9.4.1.:
Effective March 1, 2006 employees will be allowed
upon retirement or death, to receive a cash buy out
in an mount equal to 50% of their then existing
sick leave accrual balance up to a maximum of 500
hours.
ISSUE #5
ARTICLE 12 - HEALTH AND WELFARE COVERAGE
The Guild's proposal is rejected. The City's
proposal is accepted in part. Article 12
shall now read as follows:
12.1 Insurance benefits will continue to be
purchased through the Association of Washington
Cities.
12.2 In 2004, the City will pay all insurance
premiums.
12.3 In 2005, the City will pay all insurance
premiums.
12.4 In 2006, the City will pay all insurance
premiums minus $55.00 per month that will be
deducted from the employee's paycheck.
ISSUE #6
ARTICLE 17 - WAGES
The following changes to be made to the
provisions oF Article 17:
17.4 Effective January 1, 2004, the wages
shall be those set forth in Appendix A.
A salary schedule shall be prepared showing
the hourly, monthly, overtime and annual
salaries for each classi€ication through the
term of this agreement. The salary schedule
will reflect the following wage increases
from the 2003 wage schedule:
Effective January 1, 2004: 3.5%
Effective January 1, 2005: 3.5%
Effective January 1, 2006: 4.5%
It is to be noted that the year 2006 increase includes
the City's 2% buy out of shift differentials in
Issue #10.
ISSUE #7
ARTICLE 17.3 - PAYROLL LAG
It is awarded that the existing language
of Article 17.3 be replaced with that which
was recently ratified by the Anacortes
Teamsters unit and which basically provides for
For a payroll lag with a 60-day advance notice
that will allow implementation over a 10-
month period during which the City will
move the pay period one day every two
months.
ISSUE #8 - WITHDRAWN
ISSUE #9
ARTICLE 18.2 - LONGEVITY
The guild's proposal is rejected. The language
of Article 18.2 shall remain as is in the
Agreement.
ISSUE #10
ARTICLE 18.3 - SHIFT DIFFERENTIAL
The City's proposal to buy out the shift
differentials in exchange for an additional
1% wage increase across the board in 2006,
accepted in principle. The arbitrator found
the City's offer of a 1% wage increase to be
inadequate and increases it to 2% which is
incorporated in to the 2006 wage increase.
ISSUE #11
ARTICLE 18.4 - SPECIALTY PAY
The City's proposal is accepted and the
language of Article 18.4 is modified as
follows:
18.4 Premium pay of $185 per month shall be
provided to employees assigned as Detectives.
Premium pay of $130 per month shall be given
to employees assigned as DARE or Patrol Field
Training Officer; however, a Field Training
Officer must serve as FTO for at least ten
days in a calendar month in order to qualify
for premium pay for that month. An individual
may collect only one premium pay upgrade at
any one time.
ISSUE #12
ARTICLE 18.5 - EDUCATIONAL INCENTIVE
The Guild's proposal of providing an incentive
for holding an A.A. degree is accepted with
a modification to the amount of incentive
proposed by the Guild. The language of Article
18.5 shall now read as follows:
18.5 Education incentive pay shall be provided
to sworn police personnel holding an AA, Bachelor's
or Master's degree. Those holding an AA degree will
receive $40 per month; those holding a Bachelor's
degree will receive $60 per month and those
holding a Master's degree will receive $80.00 per
month. Employees may only collect the incentive
pay for the most advanced degree, not for
combinations of degrees.
ISSUE #13
ARTICLE 18.6.2 - FRINGE BENEFITS
This Article dealt with premium pay to
Detectives as a clothing allowance. The
Article has been deleted from the Agreement
as a result of the City's buy out of the
clothing allowance in exchange for an
increase in premium pay for Detectives.
Submitted this 30th day of January, 2006
GUY M. Parent
Arbitrator
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.