City of
And
Interest Arbitration
Arbitrator:
Richard W. Croll
Date Issued:
Arbitrator:
Richard W. Croll
Case #: 15590-I-01-354
Employer:
City of
Date Issued:
AN INTEREST
ARBITRATION
BETWEEN THE
AND THE
CITY OF
OPINION AND
AWARD
PERC CASE NO. 15590-1-01-354
PROCEDURE
The parties to the dispute are
the uniformed police officers and sergeants of the
Mountlake Terrace Police
Department who are represented by the
Police
Guild (Guild) and the City of
RCW 41.56.450 provides for
arbitration of disputes when collective bargaining involving
uniformed
personnel has resulted in an impasse. The parties have agreed to the selection
of
the Arbitrator as provided in RCW 41.56.450. The parties have waived the
tripartite
arbitration
panel provided for in RCW 41.56.450 and have submitted their dispute to a
single
arbitrator.
A hearing was held in the
the
testimony of witnesses was taken under oath and the parties were allowed to
present
documentary
evidence. A court reporter was present and a verbatim transcript was
prepared
and provided to the parties and the Arbitrator.
The parties agreed to submit posthearing briefs and the Arbitrator received the final
brief
on
to
the parties and that date is
APPEARANCES
For the City: Cabot Dow, President
Amie Frickel, Labor Negotiator
Cabot Dow Associates, Inc.
For the Guild: Patrick A. Emmal,
Guild Attorney
Emmal, Skalban & Vinnedge
Others present: Connie Fessler,
City Manager
Mike Pivec,
HR Manager
Scott Smith, Police Chief
Sydney Vinnedge,
Guild Attorney
Tom Baisch,
Guild Legal Assistant
Don Duncan, Guild President
Jonathan M. Wender, Guild Vice President
Doug Hansen, Guild Negotiator
Mark Connor, Guild Member
Craig McCaul,
Guild Member
BARGAINING
BACKGROUND
The Guild and the City have
been engaged in collective bargaining since at least 1977.
During those years the parties
have enjoyed a successful and positive relationship settling
all
contracts without arbitration. The predecessor contract to the contract being
negotiated
is the 1998 - 1999 Agreement which expired on
1998 -1999 Agreement was not
finalized until April 1999. Following this long period of
time
the parties took to reach agreement, they agreed that they did not want to
continue in
the
same type of bargaining process. They contacted the Federal Mediation and
Conciliation Service (FMCS) to
provide them with training in a collaborative bargaining
approach,
They instituted the collaborative approach and it was agreed that the early
results
were positive. However, some of the issues did not appear to be soluble using
the
collaborative
method and it was decided to discontinue the collaborative approach and to
attempt
to gain resolution through conventional bargaining. Subsequently the parties
requested
assistance from PERC, impasse was declared and PERC certified the impasse
for
arbitration.
ISSUES
The four issues which were
certified by the Public Employment Relations Commission
(PERC) Executive Director
Marvin Schurke are:
1. Duration
2. Article 6.1.4 - Scheduling
3. Article 9 -Wages
4. Appendix “A - Wages (Grids)
The parties met prior to the
Hearing to discuss the Issues. They reported to the Arbitrator
at
the Hearing that they had resolved issue one and two and that they were asking
the
Arbitrator to decide issues
three and four.
LEGAL BASIS OF
ARBlTRATlON
The statute mandating interest
arbitration contains rationale for why the parties must use
interest
arbitration when an impasse in bargaining occurs.
RCW 41.56.430 The intent and purpose of Chapter 131, Laws of 1973 is to
recognize
that
there exists a public policy in the state of
personnel
as means 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
should
exist an effective and adequate alternative means of settling disputes.
The statute also provides
guidance and direction to the parties and the arbitrator in regard
to
what factors are pertinent and should be considered in the development of the
arbitrator’s
award. Those factors are set out as follows:
RCW 41.56.465 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, is 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) thorough (d),
comparison of
the wages, hours and
conditions of employment of like personnel of like
employers of similar
size on the west coast of the
(d) The
average consumer prices for goods and services, commonly known as the cost
(e) Changes
in any 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.
of living;
COMPARABILITY
The issue of Comparability has
been discussed, analyzed and developed over the years by
the
advocates and arbitrators who have implemented RCW 41.56.465. In many interest
arbitration
awards the lead issue is what jurisdictions should the arbitrator decide are
the
appropriate
ones to compare to the disputing community. In the current dispute that is
also
the lead issue. The parties have restricted their offer of comparables to
cities in the
western
portion of the state of
between
the parties over the contested comparables.
The statute in (c) above makes
it clear that comparisons must be made to “like employers
of
similar size”. The definition of similar according to the City would mean that
one is to
compare
cities that are 50% larger or smaller than
23
western
Axon, Beck and Krebs who used
population statistics ranging from +/- 20 % to a +47%/
-30 % in nine arbitration
cases involving cities and counties in
Brief p. 11) The Guild has
presented documentation and argument that there is a basis for
comparables
that exceed the +/- 50% the City is proposing. The Guild quotes the award
of
Arbitrator Gaunt in this regard to indicate that when she was seeking
comparables for
the
City of
same
award, however, Arbitrator Gaunt said, “Clearly, parties and arbitrators have
settled
upon
narrower ranges than + 50% when a sufficient number of comparators can be found
closer
in size.” (Guild Brief pp. 8-9). The documentation
submitted by the City is
persuasive.
For when they applied the +/- 50% population formula they found that there
were
23 cities in western
population
statistics formula that applied t o a city the size of
cities
in the state, would not have the same merit in regard to
are
many more cities close to the size of
there
would be cities similar in size to
A review of the literature and
prior arbitration awards indicates that either the City’s
suggestion
of ten comparables or the Guilds seven comparables or a similar figure is
adequate
for purposes of determining comparability. The City said they chose to reduce
the
23 cities on their list using assessed valuation which the City said was the
“...second
most
commonly utilized criteria.. .” (City Brief p.11).
Utilizing this formula they reduced
the
list to five cities of similar size immediately above and below
assessed
valuation. The City’s list of comparables includes; Issaquah, Marysville, Mt.
and
geographically
diverse. They pointed to perceived dissimilarities to
of
the City’s comparables from counties other than Snohomish and King. They were
critical
that the City’s list contained only three larger communities and seven smaller
ones.
Their analogy was that the smaller cities would make
larger
when compared to the smaller cities that are ‘lower paid’ (Guild Brief p. 13).
They
also
say that the City ignored the historical significance of the “geographically
proximate
comparables”(Guild
Brief p. 13).
The Guild’s comparables
included
Tukwila,
represented
communities to which they had compared historically. They justified the
comparables
as being similar to, and located in proximity to
Guild stressed that the two
largest comparables on their list,
Lynnwood - 32,990, share many
programs with
SWAT,
narcotics, training and jail facilities. Also they share dispatch
service and their
officers
back each other up. The Guild also said that their comparables were on or close
to
1-5, which has a similar impact on the comparable communities and the policing
problems
it causes.
The Guild said that there was
an historical basis for their comparables and that
historically
their comparables, the City’s and the Guild’s, included the communities in
proximity
to
of
historical comparables will have to have been presented with significant
rationale to
change
that list. Assuming the list had served as the basis of the parties’ bargaining
for a
period
of time, the arbitrator would be most cautious about changing that list on the
request
of one of the parties. The burden would be on the party seeking the change to
provide
the reasons for the change. In the same vein, where the parties dispute a
historical
list of comparables as the parties are doing in the instant case, the party
seeking
to
convince the arbitrator that there is an historical list needs to provide the
proof of that
list.
The testimony of Guild Witness Connor, on the bargaining team since 1985, is
contrary
to the concept presented by the Guild that there is or ever has been an agreed
upon
set of comparables.
Mr. Emmal:
(Q) “Do you recall that there has ever been a stipulation between the City
and
the Guild regarding what jurisdictions are comparable?
Mr. Connor: (A) “I don’t
specifically recall. I would like to think that over the years we
have
agreed to comparables, but I don’t believe it has been every time.”(Tr. p. 28)
The City and Guild’s witnesses
agreed regarding historical comparisons.
Mr
Dow: (Q) “Do you recall any agreement between the City and the Guild on
comparisons
with other cities, who compared to who?
Chief Smith: (A) ‘No, I don’t
ever recall where either side stipulated to or said, yes,
those
are the comparables.” (Tr. p. 145)
It is firmly established on
the record that at no time did the parties agree on a historic list
of
comparables. As was testified to by the parties they have each had there own
list and
the
only time there were the same comparables was by coincidence when the same
community
showed up on both lists. It would greatly facilitate the resolution of
negotiations
between the parties if they had a list of comparables they could agree to or
the
criteria for such a list. However, that does not seem possible. A review of the
major
problems
that prevented the parties from reaching agreement in the current bargaining
was
economic. If the parties wish to avoid impasse in their future negotiations,
they may
want
to focus on some method of selecting jointly agreed comparables. While in this
award I
will establish comparables, it is naive to assume the parties for future
negotiations
will voluntarily adopt them.
The law is clear that the
major criterion to be considered by the arbitrator to determine
comparables
is to use similar size communities. The list of “other factors” described in
(Q are
not definitively described. They certainly will include wealth, socio-economic
conditions,
geography, proximity, etc. The method used by the City in the development
of
their list as it pertained to size was impressive, but when they switched over
exclusively
to assessed valuation to limit the number of similar size communities to the
exclusion
of all other factors seems limiting. Where the parties have as many similar
sized
communities in their area as
comparators
from some distance away seems less than efficacious. To consider the
similarity
of cities such as Anacortes, Issaquah, Port Angles,
to
At the same time the
neighboring cities of
factors
used by arbitrators in similar situations.
involved
that the law as interpreted by a large number of arbitrators does not
countenance
that
great a disparity in the size of similar communities. I am selecting as
comparable the
following
communities:
Arbitrator’s
Comparables
City Population AV/Billions
Mt. Vernon 23,020 1,218
Marysville 21,710 1,304
Oak Harbor 20,910 809
Mountlake Terrace 20,070 1,112
Mukilteo 17,360 1,595
Lake Forest Park 13,070 1,150
Monroe 11,920 708
Mill Creek 11.345 962
Average 15,175
1.107
There were several reasons for
the selection of these cities as the comparables for
Mountlake Terrace. Of prime
importance was the fact that they were all either on the
City’s or the Guild’s lists or
as in the case of Mill Creek and Lake Forest Park, both
parties
list. All except Oak Harbor and Monroe are on 1-5 or immediately adjacent to
it.
I am convinced after listening
to the presentation of the parties that much of the crime
that
the police deal with in
generated
by their location near or on 1-5. Oak Harbor, while not on 1-5 is a city almost
identical
in size with
Monroe is included, as it is a
similar size city located in Snohomish County. Of the
comparable
cities, four, Marysville, Mukiiteo,
Snohomish County; Lake Forest
Park is in King County; Oak Harbor is in lsland
County
and
similar
to that of
WAGE GRID
The City proposes a change in
the wage grid. A portion of their proposal would drop the
current
Step B (45 Hours) and Step D (135 Hours). Their explanation for these proposals
makes
sense and the Guilds concern with the City position regarding changes in the
Grid
is
that it goes beyond the two simple changes outlined here and has become a part
of their
bargaining
position which is to oppose any changes to the educational incentive. (Tr.
p.79). At
this time the City requires all new hires to have an AA or ninety hours. There
is
only one person on the D Step and the City proposes to grandfather that
officer. The
elimination
of Steps B and D will not adversely affect any employee and is more clerical