City
of
And
Interest
Arbitration
Arbitrator: Gary L. Axon
Date
Issued:
Arbitrator:
Axon; Gary L.
Case #: 12476-I-96-00272
Employer:
City of
Date Issued:
IN THE MATTER OF )
)
INTEREST ARBITRATION ) PERC
CASE 12476-I-96-272
BETWEEN )
ARBITRATOR'S OPINION
THE
ASSOCIATION, )
) 1996-98 AGREEMENT
Association, )
)
and )
)
THE
CITY OF
)
City. )
HEARING SITE: Holiday
Inn
HEARING DATES:
POST-HEARING BRIEFS DUE: Postmarked
RECORD CLOSED ON RECEIPT OF BRIEFS:
REPRESENTING THE ASSOCIATION: James M. Cline
M.
Katherine Kremer
Cline
& Emmal
Suite
No. 401
REPRESENTING THE CITY:
Perkins
Coie
One
411
-
INTEREST ARBITRATOR: Gary L. Axon
1465
Pinecrest Terrace
(541)
488-1573
Table of Contents
ISSUE Page
Introduction..................................................................2
Comparability..............................................................7
1 -
Duration..............................................................21
2 - Salary Schedule
Longevity and College Incentive.......................25
3 - Specialty
Pay......................................................56
4 - Sick
Leave..........................................................71
5 - Insurance Benefits.
...........................................79
6 -
Vehicles..............................................................90
I. INTRODUCTION
This
case is an interest arbitration conducted pursuant to the Public Employees Collective
Bargaining Act. The parties to this
dispute are
Agreements dating back to the early
1970s. The most recent contract covered
the period from
On
The
bargaining between the parties produced agreement on several issues. However,
the parties were unsuccessful in resolving all
of the issues
that divided them
in contract negotiations. Six fundamental issues were resented by the
parties for interest arbitration. The
six issues submitted for interest
arbitration also included numerous subissues or subparts.
The
last time the parties went to interest arbitration was in 1981. The 1981 award by arbitrator John Abernathy
was entered into the record of the instant case. Jt. Ex. 9 The 1981 interest arbitration was the only time
the parties found it necessary to
resort to an interest arbitrator to resolve the contract dispute. At the time of the 1981 interest arbitration
the City's population was approximately 56,000.
The
City of Everett is located in Snohomish County, Washington. The City is located on the I-5 corridor just
to the north of Seattle. The City
serves a resident population of approximately 81,810. The City has around 991 full-time equivalent
employees.
Most of the employees are members of one of six bargaining units within
the City.
The City
of Everett is
a first class
municipal corporation under the laws of the state of Washington. The City is governed by a mayor-council form
of government, with an elected mayor and
seven elected council members. The mayor
is the chief executive and administrative officer of the City. Edward Hansen
has served as mayor since January of
1994. City Ex. 1. The chief administrative assistant in the
City is James Langus.
The
Everett Police Department is led by Chief James Scharf. The
Association represents approximately 146 commissioned officers. Since 1994 nineteen police officers have been
added to the police force. For this
contract, the Association represents the commissioned officers and sergeants.
The
hearing in this case took five days for the parties to present a substantial amount of
testimony accompanied by extensive and comprehensive documentary
evidence. The parties were unable to
agree on the appropriate jurisdictions with which to compare the City of
Everett for the purpose of establishing wages and working conditions for the
members of this bargaining unit. A
substantial amount of hearing time was devoted
to receiving evidence on the issue of comparability. At the commencement
of the hearing it became obvious that the parties had a major difference of
legal opinion on what comparability
meant under RCW 41.56.030(7) (a). The Arbitrator directed the parties to
address the comparability issue as a threshold question in the post-hearing
briefs. The Arbitrator will resolve that
issue at the outset of this Award.
The
hearing was recorded by a court reporter and a transcript was made available to
the parties and the Arbitrator for the purpose of preparing the post- hearing
briefs and the Award. Testimony of
witnesses was taken under oath. At the
hearing the parties were given
the full opportunity to
present written evidence, oral
testimony and argument. The parties
provided the Arbitrator with substantial written documentation in support of
their respective positions. Comprehensive and lengthy post-hearing briefs
were submitted to the Arbitrator along with interest
arbitration awards previously issued by arbitrators in the state of
Washington.
Because of the voluminous record in this case, the parties waived the
thirty-day period an arbitrator would normally have to publish an award under
the statute.
The
six issues remaining unsettled and submitted to this Arbitrator for an Award
are as follows:
1. Duration Article 32
2. Wages Article 12 (Salary Schedule)
Article
13 (Longevity and
College Incentive)
3. Specialty Pay Article 14
Part
I General
Part
II Master Police Officers ("MPOs")
4. Sick Leave Article 24
5. Insurance Benefits Article 26
6. Take-Home Vehicles New Article
The
approach of this Arbitrator in writing the Award will be to summarize the major
and most persuasive evidence and argument presented by the parties on each of
the above stated issues. After the
introduction of the issue and positions of the parties, I will then state the
basic findings and rationale which caused the
Arbitrator
to make the
award on the
individual issue. A considerable amount of the evidence and
argument related to more than one of the issues and will not be duplicated in
its entirety during the discussion of the separate issues.
This
Arbitrator carefully reviewed and evaluated all of the evidence and argument
submitted pursuant to the criteria established by RCW 41.56.465. Since the record in this case is so
comprehensive it would be impractical for the
Arbitrator in the discussion and Award to restate and refer to each and
every piece
of evidence and testimony presented. However, when formulating this Award the
Arbitrator did give careful consideration to all of the evidence and argument
placed into the record by the record by parties.
The
statutory factors to be considered by the Arbitrator may be summarized as follows:
(a) the
constitutional and statutory authority of the employer;
(b) the stipulations of the parties;
(c) (i) . .
comparison of wages, hours and 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;
(d) the average consumer prices for goods
and services, commonly known as
the cost of living;
(e) changes
in any of
the foregoing circumstances during
the pendency of the
proceedings; and
(f) such other factors, not confined to the
foregoing, which are normally or
traditionally taken into.consideration in the
determination of wages, hours and
conditions of employment.
II. COMPARABILITY
A. Background
At
the commencement of the arbitration hearing it became clear the parties had
totally opposite opinions as to the meaning of comparability under the
statute. Each party developed its own
system for selecting comparable jurisdictions.
The methodology used by the City and Association to develop their
separate lists of
comparators had little in common.
The
Association utilized a multi-factor approach which yielded 13 cities it
believed Everett should be compared with for the purpose of fixing wages and
benefits for the 1996-98 Collective Bargaining Agreement The City countered with an approach based
solely on population The City's
methodology produced 10 cities with which to compare Everett for the purpose of
establishing wages
and benefits for the 1996-98 contract. Two cities were common to both lists.
The
division between the parties was illustrated by the fact that out of 23 cities,
only one Washington city, Kent,
appeared on both lists of comparators.
Gresham, Oregon was included on
both lists. Given the importance of
the statutory factor of comparability
and the markedly different approaches of the parties toward this topic, the
Arbitrator directed the parties to address the comparability factor as a threshold
issue in the post-hearing briefs. The
following is the statement of the positions of the parties and your
Arbitrator's resolution of the issue.
B. The
Association
The
Association proposed the following cities as its list of comparables:
Concord,
California
Corona,
California
Escondido,
California
Fullerton,
California
Gresham,
Oregon
Hayword, California
Kent,
Washington
Ontario,
California
Pasadena,
California
Redding,
California
San
Leandro, California
Santa
Barbara, California
Ventura,
California
The Association
argues its method
for selecting comparables is
superior to the method advocated by the City.
According to the Association, a multi-factor approach produces a more
reasonable set of comparables than a single-factor approach. Arbitrators have recognized that no one
single factor can truly capture the nature of a jurisdiction.
The
Association begins by claiming the City has grievously mis-
interpreted the statute in arguing that population alone is a measure of comparability. Even if the parties were to accept the
notion that "size" is
the sole determinate of
comparability, the City's argument is
nonetheless flawed. The
statute does not say that size equates
nighttime population and only nighttime
population. The statute leaves
the term size undefined. If the
Legislature intended that size meant
solely population, it would have so indicated.
The
Association next argues that the City's definition of size is misplaced. Size a concept of measurement. Nothing in the term size implies a
restriction on the object of measurement.
For example, the geographic expanse of a city is also a measure of its
size. The number of officers employed
certainly would appear to be one measure of an employer's size; The
jurisdiction's tax base has also been seen as a measure of size of an employer.
The Association
also asserted the
City's approach produced an
aberrant list of comparables. Lynnwood and Walla Walla
are of similar size but it strains the imagination to see them as
comparables. The same is true of Tukwila
and Moses Lake where the situation is that Tukwila has a tax base several times
that of Moses Lake and a police force over twice as large which protects that
tax base. In addition, the City
acknowledges such aberrations occur by artificially capping the number of
jurisdictions to be drawn from California.
The Association submits that its process of adding additional screens
through the use of multiple factors produces a more accurate rendering of
comparable jurisdictions than
does the City's undimensional
approach which necessitates the application of arbitrary screens.
Even
if the Arbitrator were to adopt the City's unusual argument that size means
only nighttime population and that likeness refers only to department unit
type, the statute still grants an arbitrator the ability to place additional
consider- ations in the process of selecting
comparators. The statute contains a
"catch-all" provision allowing the exercise of such discretion by an
arbitrator. The Arbitrator should reject
the City's approach to comparability and adopt the multi-factor approach
utilized by the Association in formulating his Award. The selection of the factors relied upon by
the Association are reasonable and have a rational basis in fact.
The
Association's jurisdictions were selected using a range of .57 to 1.75 of
Everett's demographic data on the following factors:
Total
population
Assessed
valuation
Assessed
valuation per capita
Assessed
valuation per officer
Retail
sales
Retail
sales per capita
Total
retail trade
Median
household income
Median
per capita income
Number
of commissioned officers
Numbers
of officers per thousand
Part
one crime index
Part
one crime index per officer
The
Association asserts that while population is a good indicator of the complexity of the City, population has its limitations. The tax base should be given heavy
consideration in selecting comparables because it is the fundamental source of
the employer's ability to pay. The same
is true of retail sales because in Washington State retail sales are an
important source of revenue. Per capita
also measures the tax base of a jurisdiction.
It
is also the position of the Association the number of officers is a good
measure of comparability. Further, the
number of crimes and crimes per officer are reasonable
measures of workload within jurisdictions.
The volume of crimes per officer is simply the best available common
measure we have of workload.
The
variance range for selecting comparables relied upon by the association is better than the range used by
the City. What the Arbitrator should
seek in selecting comparables is balance on the given criteria. The Association's approach of minus 50%, plus
100% screen is more likely to produce such a balance. The Association concludes its mathematical
approach is blind to the end result and is a more defensible strategy for
advocates in interest arbitration.
The
statute indicates the comparables should be drawn from "the west coast of the United States." Contrary to the City's position, the
Association asserts that no special weight should be given to Oregon jurisdictions. The City seeks to use 100% of the
jurisdictions in its stated range from the state of Oregon, yet the
City only selected two out of seventy such
jurisdictions in California. There is
simply no statutory basis for providing undue weight to Oregon as the City proposes.
The City failed to produce any evidence that Everett shows a labor
market in common with western Oregon.
The Arbitrator should hold the City's methodology is an "obvious
result-oriented ploy meant to give undue weight to
lower-paying Oregon jurisdictions."
Arbitrators
have consistently held that close geographic proximity between jurisdictions
warrants special consideration in selecting comparables. Some arbitrators have said that close
geographic proximity can offset dissimilarities in size. The King County and Snohomish County area has
been found by arbitrators to make up a common labor market. Pierce County has been acknowledged as
secondarily related to the Snohomish County and King County labor market. A review of police wages indicates that
proximity to a metropolitan areas strongly influences wages. Everett's common designation with Seattle as
part of the Seattle-Everett-Bellevue
PMSA is significant because the census data is strongly indicative of
the labor market. The labor market for
the Everett Police Department is heavily influenced by its location in the
Seattle-Everett-Bellevue PMSA.
Although
the Association placed primary reliance on its multi-factor analysis,
the Association offered a second set of comparables made up of those
four labor market jurisdictions closest to Everett in demographic
characteristics. The Association proposed for its secondary set of comparators
the cities of Tacoma, Bellevue, Renton and Kent.
Turning
to the City's inclusion of Federal Way as a comparator, the Association argues
that nonunion employers should be rejected in selecting comparables. First, employees who are not unionized do not
have their wages, hours and working conditions determined under a statutory
procedure. Second, compensation would not be comparable between such
jurisdictions because higher wages would typically be offset to some extent by
union dues. Third,
there is no basis in nonunionized
jurisdictions to compare respective rights of management or labor in
determining working conditions.
In
sum, the Arbitrator should find that the comparables proposed by
the Association are
more reasonable than
the comparables proposed by the City.
The City's sole reliance on population has produced a distorted result
because it artificially capped the number of potential comparables from
California at two
and both of those jurisdictions are from the
Los Angeles area. When analyzed closely,
the City's two California comparables proved not to be very comparable at
all. The Arbitrator should adopt the
Association's balanced list in which Everett by and large falls near the middle
on the most important factors of comparability.
C. The
City
The
selection process utilized by the City to arrive at its comparators yielded ten
west coast cities as follows:
State Population
Washington:
Bellevue 103,700
Federal
Way 75,240
Vancouver 67,450
Yakima 62, 670
Kent 60,380
Bellingham 59,840
Oregon:
Gresham 77,240
Beaverton 61,720
California:
Westminster 82,500
Whittier 82,500
Alaska: None
* * *
Everett 81,810
In
identifying the above listed comparables, the City undertook to be true to the
statutory mandate. According to the
City, the Legislature opted for a simple, objective criterion for the selection
of comparables: cities of similar size
on the west coast. The City
embraced and applied
the four statutory requirements for comparable cities
to be: (a) "likeness" to the
City as an employer, i.e.,
cities; (b) "likeness" to police officers, i.e., police
officers; (c) size similar to the City,
i.e., population in the range of the City;
and (d) geographical location, i.e., west coast states (Washington, Oregon,
California, and Alaska).
The
City argues that the statute requires the comparison to be among "like
employers." In the view of the
City, like employers necessarily means
cities. The sole meaning of "like employers"
is the form of government. The City
submits that the "like employers" requirement cannot be expanded to
include city character- istics other than
"similar size." The "like
employees" necessarily means police officers.
The
City next argues that the statutory standard is clear and unambiguous. The statute specifies "similar
size" which as a matter of common sense means the population of the
city. The plain meaning of the term
size, coupled with the legis- lative
scheme of classifying cities according to population, provides compelling
support for the proposition that the term
similar size means population.
Arbitrators have routinely held that similar size equates to
population. The definition of west coast
cities has been interpreted to mean cities within the states of Alaska,
Washington, Oregon and California.
Hence, the language requires comparisons
of cities of comparable
size in the
states of Washington, Oregon,
California and Alaska.
Applying
the above stated principles, City began
by adopting a population range of 25,000 less than and 25,000 greater than
Everett's population of 81,810. The
25,000 figure constitute a 30.55% variation on the size of the city.
The
City next identified cities on the west coast falling within the population
range of 56,810 to 106,810. This process
yielded six cities in Washington, two cities in Oregon, 70 cities in California
and no Alaska cities. In order to reduce
the number of California cities and to balance the overall sample, the two
California cities offering the closest population up and down in comparison to
Everett were selected. The two
California cities arrived at under this process were Westminster and Whittier.
The
City maintains that this set of comparators is well balanced and comports with the statutory mandate, and with
common sense and objectivity. Each is a
west coast city and the average population of 73,324 is within 12% of Everett's
population of 81,810. In the view of
the City, there is also a remarkable
balance in west coast location in
distribution from north to south.
Regarding
the Association's approach to comparables, the City asserted it makes a
"dysfunctional mockery of both (a) the governing statue and (b) the concept of principled and predictable
bargaining and interest arbitration." The Arbitrator should reject the
Association's result oriented process as not meeting the requirements of the
statute. This means the Association's
would-be comparables may not be considered through the back door of the
"other factors" criterion. The
comparability test of size preempts consideration of extra-statutory
comparables.
A
review of the Association's primary comparables reveals the Association
abandoned Washington and Oregon in favor
of California. Eleven of the thirteen
cities on the list are located in California and only one is in Washington and
only one is in Oregon. The City argues that this
flight from the Pacific Northwest
is no doubt occasioned by the Association's determination that its wage demands
are not supported by Washington and Oregon cities. The Arbitrator should reject the "flight
from the Pacific Northwest" tactic.
Even
the Association recognized the vulnerability of its
primary
sample, by offering
a secondary set
of comparables
ostensibly based on the local labor
market. Only four cities were
offered and we were not told how they could
be styled as comparable
to Everett.
The city of Tacoma is twice as large as Everett.
Bargaining
history reflects that the Association changed
its list of comparators with frequency right
up until arbitration.
On the other hand, the City consistently
stood by its proposed
comparators with the exception of Federal
Way which did not have a
police department at the time. Adoption of the Association's forum
shopping fundamentally defeats the statutory
purpose of comparables
as a benchmark for contract settlement in
bilateral negotiations.
While the statute may not be perfect, it
must be honored by the
parties and the Arbitrator.
Based
on all of the above stated reasons, the Arbitrator
should reject the Association's proposed
comparators and adopt the
list submitted by the City as the benchmark
for establishing wages
and working conditions for Everett police
officers.
D. Discussion and Findings
The failure of
the parties to reach any
agreement
regarding cities with which Everett should
be compared is contrary
to the legislative purpose of providing
"an effective and adequate
alternative means of settling
disputes." RCW 41.56.430. The
problem of selecting appropriate comparators
is further complicated
by the total absence of cities traditionally
used by the parties to
measure wages and benefits for Everett
police officers. The
statute requires interest arbitrators to
give due consideration to
comparability. Both parties to this dispute recognize the
fact
that comparability is a predominate force
for the resolution of
this dispute.
Even
though the parties have a long history of Collective
Bargaining Agreements, in one sense the
Arbitrator is starting from
the beginning in this interest arbitration
due to the total lack of
agreement as to the appropriate comparators. RCW 41.56.465(1)
counsels interest arbitrators to use the
statutory factors as
"guidelines to aid in reaching a
decision" in making an award on a
contract dispute. The City's staunch adherence to population as
the exclusive determiner of like employers
ignores the fact that
other elements may give insight into the
meaning of a "like
employer." Further, the City's narrow reading of the
statutory-
reference
to "like employers" runs
counter to the
stated
legislative purpose of