And
City
of
Interest
Arbitration
Arbitrator: Michael H. Beck
Date
Issued:
Arbitrator:
Beck; Michael H.
Case #: 12915-I-97-00278
Employer:
City of
Date Issued:
IN THE MATTER OF THE )
INTEREST ARBITRATION BETWEEN )
CITY OF
and ) OPINION
AND AWARD
GUILD )
OPINION AND AWARD OF THE INTEREST
ARBITRATOR
Interest Arbitrator
Michael H. Beck
Appearances
City: Jeffrey A. Hollingsworth
Orna A. Edgar
Guild: David A. Snyder
INTEREST ARBITRATION OPINION
AND AWARD
CITY OF
And
TABLE OF CONTENTS
I. Procedural
Matters 1.
II. Issues
in Dispute 2.
III . Statutory Criteria 2.
IV. Comparable
Employers 3.
V. Rates
of Pay 14.
VI. Deferred
Compensation 23.
VII. Education
Incentive 23.
VIII. Past
Practice 26.
IX. Flexible
Benefits 30.
X. Award
of the Interest Arbitrator 33.
IN THE MATTER OF THE )
INTEREST ARBITATION BETWEEN )
CITY OF
) OPINION AND AWARD
and )
) Date:
GUILD )
OPINION OF THE INTEREST
ARBITRATOR
PROCEDURAL MATTERS
The Arbitrator, Michael H. Beck, was selected by the parties to
conduct an
Interest Arbitration pursuant
to RCW 41.56.45 a. Panel members were not selected by the
parties
and the Interest Arbitration was heard by the undersigned as the sole
Arbitrator.
A hearing in this matter was held on June 3, 4, 5, and
A. Hollingsworth and Orna A. Edgar of the
law firm of Perkins Coie. The
Vancouver Police Officers
Guild, was represented by David A. Snyder, Attorney at Law.
At the hearing the testimony
of witnesses was taken under oath and the parties presented
a
substantial amount of documentary evidence. A court reporter was present at the
hearing
and a verbatim transcript of the proceedings was made available to the
Arbitrator
for
his use in reaching a determination in this case.
The parties agreed upon the submission of simultaneous posthearing briefs which
were
filed by each party and received by the Arbitrator on
parties
agreed to waive the statutory requirement that Arbitrator issue his decision
within
30 days following the
conclusion of the hearing.
ISSUES IN DISPUTE
During the course of the hearing the parties resolved several issues.
There
remains
for the Arbitrator five issues to be resolved which are listed below:
1. Rates of Pay
2. Deferred
Compensation
3. Education
Incentive
4. Past Practice
5. Flexible
Benefits
STATUTORY CRITERIA
RCW 41.56.465 directs the Arbitrator, in making his decision,
to be mindful of
the
legislative purpose enumerated in RCW 41.56.430 and to "take into
consideration the
following
factors:"
(a) The
constitutional and Statutory authority of the
employer;
(b) Stipulations
of the parties;
(c)(i) For [law
enforcement officers] 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
(ii) For
[fire fighters] 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
public fire departments of
similar size on the west coast
of the
when an adequate number of
comparable employers exists
within the state of
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....
The legislative purpose your Arbitrator is directed to mindful
of in making his
determination
is set for in RCW 41.56.430 as follows:
The intent and purpose of *this 1973 amendatory act
is to recognize that there
exists a public policy in the state of
of settling their labor
disputes; that the uninterrupted and
dedicated service of these
classes of employees is vital to the
welfare and public safety of the
state of
promote such dedicated and
uninterrupted public service there
should exist an effective and
adequate alternative means of
settling disputes. (Reviser's
note omitted.)
COMPARABLE EMPLOYERS
It is common in these proceedings for the Arbitrator to select
an appropriate
number
of comparable employers. Here, the employees are employed as police officers
by
the City of
41.56.465(1)(c)(i) with respect to the selection of comparable employers.
Under the statute a comparable employer is one who employs like
personnel and
is a
like employer of similar size on the west coast of the
in
agreement that like personnel of like employers refers to cities employing
police
officers.
They also agree that similar size is to be determined primarily by the
population
of
the city employing the police officers. Finally, there is no dispute that the
west coast
of
the
However, the parties are in dispute with respect to the
comparators to be used in
this
case. Their disagreement stems primarily from the fact that the Union uses a
smaller
population
spread in selecting the comparators than does the Employer, and from the fact
that
the Employer does not believe that it is appropriate, in the circumstances of
this case,
to
consider cities located in California as comparable employers to the City of
Vancouver.
In the spring of 1996, when the parties began negotiations for
a new collective
bargaining
agreement to be effective January 1, 1997, the population of the City of
Vancouver was approximately
68,000. However, at that time the parties were aware that
there
was a planned annexation by the city of several areas, referred to as Cascade
Park,
Mill Plain,
and Evergreen. These areas, adjacent to the city on its east, were estimated to
contain a
population of approximately 57,000, and thus if the annexation was approved,
then
the new city population would be approximately 125,000.
The City believed that since the annexation was likely to be in
place at the start of
the
term of the new contract it was appropriate to select comparators based on the
combined
population of approximately 125,000. The Union shared this view and based
its
selection of comparators on a figure of 125,000. The annexation was approved
and
was
effective January 1, 1997. The inclusion of the population of the annexed areas
with
that
of the City of Vancouver, moved the City from the seventh largest city to the
fourth
largest
city in the State of Washington. The parties are in agreement that the
population
of
the City of Vancouver at the time of the hearing was 126,453.
The Union in selecting its comparators determined to select all
cities on the west
coast
which came within a band of 10,000 below 125,000 and 10,000 above 125,000,
thus a
range of 115,00 to 135,000. By employing this relatively tight population
range,
the
Union was able to limit the number of comparators to 12, which the Union views
as a
reasonable
number of comparators. However, of the 12 comparators, ten are located in
California,
and two in Oregon with none located in Alaska or in Washington. The Union
determined
that since Vancouver was located in Washington it would be appropriate to
add
the three cities in Washington whose population was closest to that of
Vancouver,
Bellevue, Everett and Tacoma,
so that "cities within Washington were a factor in
assessing
wages and benefits in Vancouver." (Guild Exhibit No. 37.) Thus, the Union
now
had 15 comparators.
In an attempt to meet the objections of the city to the Union
selected comparators,
the
Union modified its list of comparators by removing two California cities,
Lancaster
and
Santa Clarita, which the Employer had specifically objected to because these
cities
contracted
with the Los Angeles County Sheriff's office for law enforcement services
and,
thus, as I understand it, did not maintain their own police departments.
Furthermore,
the
Union agreed to add two additional cities located in Washington which were the
next
closest
in population to Vancouver, namely Federal Way and Spokane.
The Employer specifically objected to the inclusion of
Sunnyvale, California
because
that city has consolidated its police and fire protection services into a
single
department
and, therefore, could not be considered a like employer under the statute. The
Union refused to remove
Sunnyvale as a comparator taking the position that in Sunnyvale
employees
working as public safety officers were primarily responsible for law
enforcement
rather than fire fighting.
In alphabetical order, the Union's 15 proposed comparators are:
__________
Bellevue Orange
Escondido Salem
Eugene Salinas
Everett Santa Rose
Federal
Way Spokane
Fullerton Sunnyvale
Haywood Tacoma
Irvine
__________
The Union's list contains five Washington comparators, two
Oregon comparators
and
eight California comparators. Furthermore, the ten comparators from Oregon and
California are within the
narrow population band of 115,000 to 135,000 while the five
Washington comparators,
although not within the population band, are included by the
Union in order to provide
representation from the State of Washington among the
comparators.
The Employer determined its comparable employers by considering
a population
band
of 50% below the population of Vancouver to 150% above the population of
Vancouver. The Employer,
however, did not include as comparators any cities in
California. In this regard,
David Vial, the City's Assistant Director of Human Resources
and
Risk Services, testified that he used geography in determining the comparators
to be
selected
within the population band he believed appropriate. Thus, Vial testified that
he
considered
the comparators in Washington that met the population criteria since
Vancouver is located in
Washington. Vial also included the comparators located in
Oregon that met the population
criteria because of Vancouver's location directly across
the
Columbia River from Portland, Oregon. In
this regard, Vial testified that the citizens
of
Vancouver listen to radio stations located in Oregon and watch television
programs
received
from television stations located in Oregon. Additionally, he testified that
Oregon newspapers are readily
available in Vancouver and are generally read by the
citizens
of Vancouver. Furthermore, he testified that Vancouver citizens cheer for the
Portland
NBA team, the Blazers, rather than the Seattle NBA team, the Sonics.
Thus, he
concluded
that comparators located in Oregon were appropriate. No mention was made
by
the Employer during its case of comparators located in Alaska, but based on my
review
of Guild Exhibit No. 16, entitled "Alaska Population Overview: 1996
Estimates,
it
does not appear that any Alaska city was within 50% to 150% of the population
of
Vancouver.
The Employer's method of selecting comparators yielded five
Washington
comparators
and four Oregon comparators, for a total of nine comparators which are
listed
below in alphabetical order:
__________
Bellevue Gresham
Beaverton Salem
Eugene Spokane
Everett Tacoma
Federal
Way
__________
After carefully considering the contentions of the parties on
behalf of their
selected
comparators, I find that neither list presents an appropriate set of
comparators.
First of all, I do not think it is appropriate in the instant
case to eliminate all
California comparators as
contended for by the Employer. The Employer makes two
basic
arguments in support of its position. First, that if there are sufficient
comparators in
the
immediate area of the employer in question, or in the same state, or in the
region, then
the
comparators should be so restricted. According to the Employer, this approach
of
obtaining
comparators from what the Employer describes as "the least remote area
possible,"
(Employer's post-hearing brief, p. 11) is consistent with the legislative intent
of
the statute as it requires the Arbitrator to focus on employees who are
similarly
situated
to the employees employed by the Employer involved in the arbitration
proceeding.
Secondly, the Employer contends that inclusion of California cities are
inappropriate
given cost of living differentials between cities located in Washington and
Oregon on the one hand, and California cities on the other. In support of its
contention
that
such cost of living differentials exist, the Employer commissioned a study which
was
prepared
in May of 1997 by the firm of Runzheimer
International.
As the Union points out, RCW 41.56.465(1)(c)(i) does require the Arbitrator,
when
conducting an interest arbitration for law enforcement officers, "to take
into
consideration":
[a] comparison of the wages,
hours and conditions of
employment of personnel involved
in the proceedings with
the wages, hours, and conditions
of employment of like
personnel of like employers of
similar size on the west coast
of the United States. (Emphasis
added.)
While it is possible as the
Employer suggests to first consider and then reject California
as a
source of comparable employers, there must be a significant reasons to do so in
light
of
the statutory language. Thus, for example, if an arbitrator is looking at
comparators
for a
small city located along the I-5 corridor between Seattle and Olympia, and the
arbitrator
finds that there are a sufficient number of comparators located along that I-5
corridor,
the arbitrator might appropriately limit consideration of comparators to that
area
based
on well recognized concepts of labor market. However, here we are not dealing
with a
labor market, but merely with an Employer contention that the Arbitrator should
limit
consideration to the smallest possible area in which a sufficient number of
comparators
can be found, which in this case is a two state area. There is no evidence
presented
at the hearing to indicate that the states of Oregon and Washington constitute
a
labor
market distinct from that contained in California.
Furthermore, I note that since the Interest Arbitration Statute
was adopted by the
legislature,
the legislature has amended that statute to provide that with respect to fire
fighters,
but not with respect to law enforcement officers, the following:
[W]hen an adequate number of comparable employers exist
within the State of Washington,
other west coast employers
may not be considered. RCW
41.56.425(1)(c)(ii)
Thus, as the Union points out, while the legislature thought it
appropriate to limit
comparable
employers to the State of Washington where an adequate number of such
employers
existed for fire fighters, it did not make the same determination with respect
to
law
enforcement officers. This suggests to your Arbitrator that it would be
contrary to
the
legislative intent to limit the selection of comparable employers to a state or
regional
area
merely because there was an adequate number of such comparable employers in
that
state
or regional area with respect to law enforcement officers. However, this is
exactly
what
the Employer is seeking here. Namely, to have the Arbitrator limit the
comparators
to a
two state region, Washington and Oregon, on the basis that there are a
sufficient
number
of comparators in that two state region: The statute simply does not provide
for
such a
result.
I turn now to the Employer's contention that California cities
are inappropriate as
comparators
because of a cost of living differential between cities located in California
and
cities located in Washington and Oregon. As I understand the Employer's
argument,
it
is that an employer cannot be considered a "like employer" if it can
be demonstrated
that
that employer has a higher cost of living than the employer subject to the
Interest
Arbitration.
However, in my view, this reads too much into the phrase "like
employers"
contained
in the statute. No mention is made in the statute that to be a "like
employer," an
employer
must have a "cost of living" that is the same or close to that of the
employer in
question,
even assuming such differentials can be accurately computed. In fact, the
statute
prescribes the method of choosing appropriate comparators, namely, employers
employing
like personnel, being of similar size and located on the west coast of the
United States.
Furthermore, the Runzheimer method
relied on by the Employer is designed for
assisting
clients whose executives are transferring from one part of the country to
another. Runzheimer uses income studies starting at $100,000 up to
$300,000 in $25,000
increments
based on costs in a large city such as Denver, St. Lous
or Atlanta. Here we
are
dealing with police officers who at top step earned less than $46,000 in base
salary in
1996, worked in a much smaller
city, and were not transferring to another city and thus
did
not have to secure housing. Finally, as
described below, I have taken into account
regional
differences by selecting comparators from the three west coast states in which
there
are employers that meet the statutory criteria.
The Union does not contend that the Employer range of 50% to
150% of
Vancouver's population is
inherently unreasonable. However, the Union points out that
if
this population criteria is applied in the instant case, the result would yield
approximately
70 California comparators. I agree with the Union that such a large
number
of comparators would constitute an unwieldly number
of comparators. However,
I disagree with the Union that
the way to avoid an unwieldly number of comparators
is to
employ
the standard of 10,000 minus and 10,000 plus and then add Washington
comparators
even though they do not come within the standard used in selecting Oregon
and
California comparators. The 50% to 150% population standard is one that has
been
traditionally
used in interest arbitrations. Therefore, it seems to me that this standard
should
be employed here as the Employer suggests, and, if the result is too large a