And
Fact
Finding
Arbitrator: Gary L. Axon
Date
Issued:
Arbitrator:
Axon; Gary L.
Case #: 09244-F-91-00164
Employer:
Date Issued:
IN THE MATTER OF FACTFINDING )
)
BETWEEN ) FINDINGS OF FACT
TROOPERS ASSOCIATION, ) AND RECOMMENDATIONS
) OF
Association, )
) GARY L. AXON
and )
) FACTFINDER
STATE OF
)
Patrol. )
HEARING SITE: Westwater Inn
HEARING DATE:
POST-HEARING BRIEFS: None
RECORD CLOSED:
REPRESENTING THE ASSOCIATION: Will Aitchison
Aitchison, Hoag, Vick
&
Tarantino
REPRESENTING THE PATROL: Chip Holcomb
Senior
Counsel
Assistant
Attorney General
State
of
FACTFINDER: Gary
L. Axon
1465
Pinecrest Terrace
(503)
488-1573
BACKGROUND
The Patrol is responsible for general law and traffic
enforcement in the
state of
enforcement
mission of the Patrol is traffic enforcement throughout
Field Operations Bureau is the
largest bureau which is divided into
eight
geographic divisions. Within each division are approximately
fifty
detachments. Troopers and sergeants are
assigned to the
various
detachments. The other two bureaus are
the Investigative
Services
Bureau and a Support Services Bureau.
In 1988, the
grant
collective bargaining rights to members of the Patrol. The
Patrol was placed under the
control of the Public Employment
Relations Commission (PERC)
instead of the Department of Personnel
which
regulates collective bargaining for other state employees.
Under the law the Association
and Patrol are not allowed to bargain
over
"wage and wage-related" issues.
If the parties are unable to
reach
agreement, non-binding factfinding is authorized to
assist in
the
resolution of the dispute.
The Association was certified by PERC as the exclusive
bargaining
representative for troopers and sergeants employed by
the
Patrol. The Association represents
approximately 900 people
employed
by the Patrol. Members are assigned to
the detachments
throughout
the state of
After the passage of the law authorizing collective
bargaining
for members of the Patrol, the parties
commenced
negotiations. As the result of negotiations, the parties
entered
into
their first Collective Bargaining Agreement.
The initial
contract
covered a three year period from 1989 through 1991.
The parties entered into negotiations for a successor
agreement
to the 1989-91 contract. Bargaining and
mediation
resulted
in agreement on all but two issues.
Impasse was declared
and
the case was advanced to factfinding.
The
two issues submitted
to the Factfinder for a
recommendation
are as follows:
ISSUE PAGE
1. Discipline
and Discharge 4
2. Residency 20
ISSUE 1: Discipline and Discharge
Background
Article 15, Section A mandates that disciplinary actions,
including
discharge, "shall be for cause only." Written reprimands
and
disciplinary transfers may be appealed through the grievance
procedure. Discipline other
than written reprimand
and
disciplinary
transfer are excluded from the grievance procedure.
Article 16, Section E states:
E. Suspension,
Demotion, and Discharge. The
established statutory disciplinary
process
Trial Board and/or Superior Court or Trial
Board and/or Disciplinary Appeals Board shall
be the sole remedies for an
employee who is
suspended, demoted or
discharged.
The
statutory appeal
process is set
forth in RCW
43.43.070. Pursuant to this procedure a Trial
Board is appointed
consisting
of two
or
above and one member of equal rank to the grievant. The
procedure at hearing
is outlined at
RCW 43.43.070. An
administrative
law judge presides over the hearing but has no vote.
A transcript is made of the
hearing.
After the hearing, the Trial Board makes its findings for
submission
to the Chief. If the Trial Board
concludes the charges
are
not sustained, the findings are binding on the Chief. In the
event
the charges are sustained, the Chief may determine the proper
disciplinary
action.
RCW 43.43.100 provides for writ of review to the superior
court
of Thurston County to have the reasonableness and lawfulness
of
the Chief's order of discipline reviewed.
Against this
statutory
procedure the parties agreed to establish a Disciplinary
Appeals Board as an
alternative to the judicial review established
by
statute. The member must make an
election of remedies between
appealing
the case to the Disciplinary Appeals Board or the
If the employee elects to appeal to the Disciplinary
Appeals Board, the contract
procedures are set forth in Article 15,
Section C. The Disciplinary Appeals Board is composed of
three
members from
the bargaining unit and three members from management.
Each time the Disciplinary
Appeals Board meets to consider an
appeal,
a chair is selected by the flip of a coin.
The sole
evidence
before the Disciplinary Appeals Board is the record of the
Trial
Board hearing. No
additional testimony may be taken. The
Disciplinary Appeals Board
hears argument of counsel based on the
previously
established record.
Section C describes the function of the Disciplinary
Appeals Board as follows:
* * *
The Appeal Board's only function is to review
the Chief's order. The Board will review the
Chief's order considering (1) its fairness
given the circumstances as
demonstrated by the
record
before the Trial Board,
(2) the
and function as a law
enforcement agency, and
(3) the Patrol's prior
disciplinary actions
for similar conduct.
The Disciplinary Appeals Board
has the authority to "uphold,
reduce,
increase or reverse the penalty."
If the Chief's decision
is
reversed, the Patrol must reimburse the member for the cost of
the
transcript of the Trial Board proceeding.
During the term of the 1989-91 contract, the Disciplinary
Appeals Board was convened to
hear the appeals of four members. In
one
case the member resigned prior to the hearing.
Eight charges
were
at issue against the three troopers who had appealed to the
Disciplinary Appeals Board. The Disciplinary Appeals Board
sustained
the Chief's decision on four of the charges and reduced
the
penalty on the four other charges. The
most serious discipline
considered
by the Disciplinary Appeals Board was a five-day
suspension.
The Association proposed to delete the Disciplinary
Appeals Board from the
contract and replace the current system with
binding arbitration
before a neutral arbitrator. The Patrol
would
continue
current contract language.
A. The
Association
The Association proposed to modify Article 15, Section A
by
deleting the second sentence which prohibits grievances over
reassignment
or transfer of employees from a specialty position.
The Association would delete
the entire Section C which addresses
the
subject of the Disciplinary Appeals Board.
Turning to Article
16, the Association would
delete the current language found in
Section E and substitute new
language to state:
E. Appeals. An employee who believes that
he/she has been disciplined
without just cause
shall have one of two routes of
appeal: (1)
the established statutory
disciplinary process
Trial Board and/or Superior Court; or (2) the
grievance procedure established
herein. An
employee electing to appeal
discipline shall
be required to specify, in writing, which
appeal route is chosen, and to waive all
rights to the other appeal
mechanism.
The Association asserted this
is the single most important issue
before
the Factfinder.
From the viewpoint of the Association, the
Trial Board system is
"wholly unsatisfactory to the members of the
Association." According to the Association, the Trial Board
system
is
widely regarded as "manipulable" and about
the furthest thing
from a
neutral disciplinary forum as could be imagined. Nor does
the
ability to appeal to the court offer a reasonable alternative
to
the Trial Board system. Because of the
standard of review in
court, the
Association has been unable to discover one case where
a
trooper has successfully appealed discipline through the court
system.
It. is the perception of Association members that the
disciplinary
system is unfair. According to the
Association, it
was the
members' dissatisfaction with the disciplinary system that
served
as the primary motivating factor behind the Association's
certification
as the exclusive bargaining
representative for
troopers. During the negotiations for the first
contract, the
Association aggressively
pushed for arbitration by a neutral
arbitrator.
The Patrol resisted such neutral third party review of
disciplinary decisions. In attempting to
find a possible
compromise,
the Association proposed a disciplinary appeals system
similar
to that in Michigan. The Patrol rejected
the Michigan
system
and countered that it would consider the Michigan system if
the
Disciplinary Appeals Board were viewed as an appellate body
over
all disciplinary cases.
In
order to close
the contract the
Association
reluctantly
accepted the Disciplinary Appeals Board as the method
for
review of disciplinary action.
The Association maintains that the Disciplinary Appeals
Board has proved
unsatisfactory for several reasons.
First, the
Disciplinary Appeals Board
considers only the record of the
proceeding
before the Trial Board. There is no de
novo review of
the
evidence presented to the Trial Board.
This means the Trial
Board has the authority to
determine what facts can be reviewed by
the Disciplinary
Appeals Board since the record is created before
the
Trial Board rather than the Disciplinary Appeals Board.
Second, in the first case which the Disciplinary Appeals
Board heard it made a minor
modification in the discipline imposed
by
the Chief. After that decision some members of the Disciplinary
Appeals Board received a
letter from the Chief, described by the
Association,
as "threatening in nature." The letter asked the
members of the
Disciplinary Appeals Board
to justify their
decisions
and made it clear that the Chief was dissatisfied with
the
results of the Disciplinary Appeals Board.
Third, the system where the Disciplinary Appeals Board is
only
entitled to review the record developed before the Trial Board
has
proved to be extremely troublesome. The
Trial Board has
refused
to consider evidence which would plainly be admissible in
arbitration. By controlling the record which the
Disciplinary
Appeals Board will receive,
the Trial Board can effectively control
the
decision the Disciplinary Appeals Board makes.
In sum, the results before the Disciplinary Appeals Board
have
been disappointing to the Association.
The Association next points to the practices in the
comparable
jurisdictions. Under RCW 41.56, the jurisdictions which
are
considered to be comparable must be located on the "west
coast." The three west coast states which the
Association argued
are
relevant are Washington, Oregon and California.
In Oregon, all
discipline in the Oregon State Police
is appealable to an
arbitrator.
This system has been in place since the first contract
was
negotiated in 1985 between the Oregon State Police Officers
Association
and the State of Oregon.
The California system is analogous to a civil service
board
for the appeal of discipline. Under the
California system,
discipline
is appealed to the state personnel board, where the
initial
decision is rendered by an administrative law judge. The
civil
service board is an entity outside of the law enforcement
agency
which makes the final decision on discipline.
The Association also pointed to the practices in other
law
enforcement agencies in the state of Washington. (Assn. Ex.
C). With the exception of the Patrol,
disciplinary appeals in law
enforcement
agencies are always heard by a party who is neutral and
independent
of the law enforcement agency. The
Association's
survey
of counties with population greater than 150,000 and cities
with
population greater than 50,000 is uniform that discipline
appeals
are ultimately resolved by a neutral arbitrator or civil
service
board.
Dan Davis, President of the Association testified on
behalf
of the proposal. Davis explained that
the members want due
process
in disciplinary matters. According to
Davis, the members
still
view the current system as unfair and arbitrary because of
the
control the Chief exercises over the existing process. The
Association wants a system
that is free from the Chief's overt and
implied
control over the outcome of disciplinary appeals. Davis
testified
this situation can be remedied by
arbitration of
disciplinary
matters by a neutral third party.
The Association submits the current system does not work
because
it is driven by a Trial Board that is dominated by
management
representatives. The evidence submitted
at the Trial
Board is controlled by a
management dominated group which slants
the
results. Therefore, the Association
concludes that it is
critical
to the integrity of the system to have arbitration by a
neutral
who understands the law of discipline and discharge.
B. The Patrol