City
of
And
Interest
Arbitration
Arbitrator: Gary L. Axon
Date
Issued:
Arbitrator:
Axon; Gary L.
Case #: 14678-I-99-00322
Employer:
City of
Date Issued:
IN THE MATTER OF )
)
INTEREST ARBITRATION ) PERC
14678-I99-322 )
BETWEEN ) ARBITRATOR'S OPINION
)
THE
)
Association, )
1999 WAGE REOPENER
)
and )
)
)
City. )
HEARING SITE: City Hall
HEARING DATE:
POST-HEARING BRIEFS DUE: Postmarked
RECORD CLOSED ON RECEIPT OF BRIEFS:
REPRESENTING THE ASSOCIATION: Sydney D. Vinnedge
Patrick
A. Emmal
Emmal Skalbania & Vinnedge
REPRESENTING THE CITY: Eric S. Nelson
Corporation
Counsel
City
of
INTEREST ARBITRATOR: Gary
L. Axon
Post
Office Box 190
(541)
488-1573
I. INTRODUCTION
The
City of
Police Association (Association) are
signatories to a Collective
Bargaining Agreement effective
31, 2000. Included in the Collective Bargaining
Agreement is
Article 29, which states:
ARTICLE
29
REOPENING
OF AGREEMENT FOR 1999 AND 2000
The
provisions of Article 19 covering salary
ranges
for Patrol Officer, Lead Patrol, and
Sergeant, and
including an Association
proposal for
creation of a
deferred
compensation
plan with a matching contribution
from
the Employer, shall be reopened for
negotiation
upon written demand no earlier
than
August
31, 1998, for the year 1999, and no
earlier
than
such
negotiations, all Articles covering Wages
and
Benefits shall remain in effect until new
terms
for the above provisions of Article 19
are
mutually agreed upon or until the impasse
procedure is
exhausted. This paragraph
affects
and relates only to the provisions of
Article
19 and benefits enumerated and no
other
article or provision shall be affected,
and any
changes are to be
effective on
respectively.
The parties were unable to resolve the 1999
wage dispute through
negotiation and mediation.
In
a letter dated
Executive Director,
Public Employment Relations
Commission,
certified for interest arbitration under
RCW 41.56.450 the issue:
1. Article 29 - Reopening of Agreement for
1999
and 2000. Specifically, the 1999
wage
reopener.
City
Ex. 4, p. 1.
The case was scheduled for hearing
before this Arbitrator for a
final and binding resolution. The parties have agreed that the
wage increase awarded shall be
retroactive to
The
City has a population of 16,420 persons and is
located in
(County) is located along the Pacific
coast of western
The total County population was
estimated at 68,300 for 1997.
Assoc. Ex. 16.
population growth for the County has
increased by 5.34% from 1990
to 1999.
City Ex. 11. The population of
the City of
remained constant over that same period
of time.
The
City is located in a sparsely populated rural county.
The population per square mile within
the City is 1,422.85. City
Ex. 10.
The per capita assessed valuation for the City is $38,771
and its regular levy rate for 1999 is
3.09. City Ex. 9. The 1999
total property valuation was
$636,624,943.
The
Association represents a bargaining unit composed of
32 police officers, including eight
sergeants and three lead patrol
officers. The majority of the police officers work patrol
and are
rotated in and out of detective
positions. Seven officers receive
premium pay for participating in the
City's "Advanced Officer"
program.
City Ex. 6. The Chief of Police
is Robert L. Maxfield.
At
the commencement of the arbitration hearing, the
opening statements from the parties
revealed a sharp difference of
opinion over the issue of
comparability. In addition, the parties
also disagree over methodology and means
by which to compare the
wages and contract benefits of
counterparts in other cities. A
significant amount of hearing time
was devoted to the presentation of
evidence and argument on the
statutory factor of comparability. The Arbitrator directed the
parties to address the issue of
comparability separately at the
beginning of their post-hearing
briefs. The Arbitrator will
address
the comparability issue at the commencement of his
discussion and findings.
The
hearing in this case required one day for each side
to present their evidence and testimony. The hearing was recorded
by a court reporter and a transcript was
made available to the
parties and the Arbitrator. Testimony of witnesses was received
under oath. At the hearing the parties were given the
full
opportunity to present written evidence, oral testimony, and
argument regarding the issue in
dispute. Both the Association and
the
City provided the
Arbitrator with substantial
written
documentation in support of their
respective positions on the wage
issue.
Moreover,
the parties also submitted comprehensive and
detailed post-hearing briefs in further
support of their respective
positions taken at arbitration. The
approach of this Arbitrator in
writing the Award will be to summarize
the major, most persuasive
evidence and argument presented by the
parties on the wage issue.
After the introduction of the issue and
the positions of the
parties, I will state the basic findings
and rationale which caused
your Arbitrator to make an award on the
wage issue.
The
overall context for review of this case is under the
terms of Article 29 providing for
reopening of the agreement on the
subject of the 1999 wage schedule. The
City offered an across-the-
board salary increase of 2% effective
objected to consideration of an
employer-matched contribution to a
new deferred compensation plan for
members of the Association as an
illegal subject of bargaining. The
Association proposed an across-
the-board salary increase of 13%
effective
Association also made an alternative
proposal of an 8% salary
increase
and a deferred
compensation plan with
matching
contribution from the City of 5% of
gross earnings effective
January 1, 1999.
This
Arbitrator has 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, testimony, and argument
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 parties.
The
statutory criteria are set out in RCW 41.56.465, as
follows:
(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 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.
Because
of the voluminous record and extensive arguments
in this case, the parties waived the
thirty (30) day period an
arbitrator would normally have to
publish an interest award under
the statute.
II. POSITIONS
OF THE PARTIES
A. The Association
The
Association takes the position the award should be
based on a just and fair application of
the statute. A principled
approach to decision making in interest
arbitrations rejects
extreme positioning by either
party. Pursuant to that principle,
the legislature intended the parties
should not be allowed to gain
through arbitration that which would not
reasonably be anticipated
through unrestricted collective
bargaining. The Association
submits the City has acted contrary to
the legislative intent and
has engaged in extreme posturing
throughout negotiations in the
hope that the arbitration proceeding
would result in a wage
settlement which the City would not
otherwise be able to acquire
through unrestricted collective
bargaining.
In
1998 the Association agreed to no wage increase in
1998 in exchange for a reopener in 1999.
The Association accepted
the City's arguments for a zero wage
increase because the City had
"infrastructure expenditures"
it needed to attend to in 1998.
According to the Association, it only
agreed to no increase based
on an implicit understanding between
both parties that the City was
going to "make it right" in
1999. The presumption was the
Association would see a large increase
in 1999 to make up for the
lack of any increase in 1998. The evidence shows the City failed
to live up to this understanding when it
took a hard line in the
1999 bargaining and seeks to deny the
Association an appropriate
wage increase for 1999.
With
respect to the City's bargaining position, the
Association maintains the City chose to
bargain to impasse and go
to arbitration, arguing an overly
legalistic application of the
interest arbitration statute in order to
produce a novel and unjust
result.
The Arbitrator should reject the City's position in order
to prevent management from turning the
process into a legal
charade. The Association must be able to trust the
system;
otherwise, the damage to the
relationship between the parties will
ultimately affect the public welfare of
the citizens of the City of
Aberdeen.
The Arbitrator
should adopt the
Association's
comparability approach. The arbitration awards demonstrate that
comparability is
of overriding importance
in an interest
arbitration. While the statute provides
for a number of criteria,
comparability has been recognized by
interest arbitrators as the
predominant criteria to be used in
determining the appropriate wage
increase. The reason for the reliance on comparability
data is
that it allows for a presumptive test to
the fairness of a wage
structure. Because these comparisons carry an aura of
fairness,
they create an opportunity to produce a
result acceptable to those
affected.
The
Association takes the position the City's approach to
selecting comparables is result oriented
and inherently flawed.
After successfully extracting a zero
increase from the bargaining
unit in 1998, the City realized it would
have to pay in 1999 to
make up for the loss in 1998. The City now hopes to avoid this
obligation by asking the Arbitrator to
apply an extremely rigid
comparables analysis, and thereby
minimize its obligation to the
Association. This is exactly what the
City is trying to do when it
asks the Arbitrator to apply a strict
up/down population criteria,
and disregard the statutory mandate of
selecting like employers.
Arbitral authority holds that, in determining comparability,
arbitrators give
the greatest consideration
to population,
geographic proximity or labor market,
and assessed valuation.
The
Association takes the position its comparability
approach is superior because it looks to
fundamental geographic and
labor market factors. A major issue of comparability in this case
comes down to what is sometimes referred
to as the "Cascade
Curtain." Arbitrators have held
repeatedly that, where sufficient
comparables lie on one side of the
Cascade mountain range, there is
no need to select comparables on the
other side of the range. The
Association submits there is a multitude
of comparable cities on
the west side to choose from in
measuring what the appropriate wage
increase should be for the members of
this bargaining unit.
Contrary
to the arbitral authority, the City is asking
this Arbitrator to disregard the fact
that there are sufficient
comparables on the west side and to
utilize jurisdictions from the
east side in order to drive down the wages
of the members of this
bargaining unit. Both parties have provided the Arbitrator
with
numerous west side comparators that fit
within the statutory
criteria of "like personnel of like
employers of similar size."
The eleven western comparators proposed
by the parties are
sufficient. If the Arbitrator finds the proposed
comparators are
not adequate, he has the authority to
select from many of the
alternate western Washington contracts
contained in Volume 1 of the
Association's exhibit book.
Regarding
the City's proposal to use three comparators
from eastern Washington, the Association points out that the
economies of eastern Washington cities
are fundamentally different
from the economies on the west
side. The broad differences are
reflected in the economies,
demographics, and industrial topology.
Sunnyside, Ellensburg, and Moses Lake
are agrarian-based economies
with high levels of seasonal work and
migrant farm worker
populations. Aberdeen, located in Grays Harbor County,
bases its
economy on manufacturing and government
services and is fairly
close to the standard of a stable
population. Farming is the big
industry that dominates the economic
life of Ellensburg and Moses
Lake. The same is true for Yakima, where
substantial employment is
in the agricultural sector.
A
review of the unemployment claims reveals that 39% of
those claims from Grays Harbor originate from white collar
professions and 61% from blue collar
professions. In Grant County
and Yakima County the largest percentage
of unemployment claims
originate from agriculture which is
prone to seasonal unemployment.
Moreover, the sufficiency of western comparators is
evidenced by those jurisdictions which
both sides have offered as
comparable jurisdictions. Mountlake Terrace, Kelso, and Tumwater
are all west side jurisdictions. The Arbitrator should give
credence to the fact that both sides
have recognized three west
side jurisdictions as appropriate
comparators when developing the
full list of cities on which to base an
award.
The
Arbitrator should adopt the Association's variance
range to select comparables and refuse
to adopt the City's strict
up/down approach. In the view of the City, a +1-50% range
should
be used, yet at least one of the City's
comparables exceeds 50% of
assessed valuation, suggesting agreement
with the Association's
screen.
All comparables offered by the City and the Association
fit within the +1-50% screen on
populations. Many arbitrators have
allowed the comparables to exceed a +50%
screen by refusing to
adopt a strict up/down approach and
allowing "other factors" to be
considered. The key to assessing this range is
understanding that
what is being utilized is a ratio of
two-to-one in both directions.
It is also noted it is the task of the
Arbitrator to sift through
the data to determine who truly has
produced a more balanced set of
comparators.
Turning
to specific cities, the Association argues that
Hoquiam and Olympia are required under a
labor market geographic
analysis. Although Olympia and Hoquiam fall outside the
50/100
screen of population and assessed
valuation, they should be
included as comparators because of their
influence and proximity to
the Aberdeen labor market. Olympia should be included because it
falls within the sphere of influence of
Aberdeen. Arbitrators have
consistently held
that close geographic
proximity between
jurisdictions warrants special
consideration in the selection of
comparables. In the instant case, the proximity of Olympia
and
Hoquiam to Aberdeen is undisputed. The
sphere of influence clearly
encompasses the City of Aberdeen. Thus,
both jurisdictions deserve
to be seriously considered by this
Arbitrator and included in the
final list of comparable jurisdictions.
The
Association takes the position that the comparables