DECISIONS

Teamsters Local Union No. 763

And

City of Lynnwood

Fact Findings

Arbitrator:      Phillip Kienast

Date Issued:   03/13/1978

 

 

Arbitrator:         Kienast; Philip

Case #:              01291-F-77-00066

Employer:          City of Lynnwood

Union:                Teamsters; Local 763

Date Issued:     03/13/1978

 

 

                                    IN THE MATTER OF FACT FINDING

           

City of Lynnwood                                           )

                                                                        )          

     - and -                                                         )           Report and Recommendation

                                                                        )           Pursuant to RCW  41.56

Teamsters Local Union No. 763                   )           (PERC Case No:  l291-F-77-66)

                                                                        )           5 April1978

________________________________        )

 

 

                                                            APPEARANCES

 

For the Union:

            Russ Christensen, Director, Law Enforcement Division of Local 763

 

 

For the City:

            Cabot Dow Labor Relations Consultant to the City of Lynnwood

 

 

                                    REPORT AND RECOMMENDATION

 

Background

 

            A hearing in the matter was held on March 15, 1978 at which time the

Parties stipulated the issues to be resolved, the cities to be used for

comparison purposes and several joint exhibits ( see Appendix A) .  At the

hearing the parties also waived the use of a Panel for the proceeding and

empowered the chairman to serve as the sole Fact Finder in the case.

 

            With their two year labor contract due to expire on December 31, 1977,

the parties began negotiations on a successor agreement in April of 1977.

Out of seven formal negotiating sessions during the summer emerged a firm

proposal by the City for a two year agreement.  At the request of the City

the Union negotiating committee took this proposal--without recommenda-

tion--to their members for a ratification vote in September.  Upon rejec-

tion of that proposal by the members negotiations resumed with the assis-

tance of a mediator from the Public Employment Relations Commission (PERC).

 

            At a negotiating session on November 29 chaired by the mediator the

Union and City negotiating committees agreed that an improved City two year

proposal would be recommended by the Union negotiating committee to their

members for acceptance in return for an assurance by the City that should

it be rejected that the issue of retroactivity would not be contested by

the City (J4, Appendix A) .  However, the proposal was rejected and shortly

thereafter the parties jointly requested PERC to initiate this fact finding

proceeding.

 

City Position

 

            The City contends the agreement arrived between the negotiating corn-

mittees represents a fair resolution of the dispute.  It argues that the

parties before them essentially the same facts presented in this proceed-

ing , that these facts were carefully examined and weighed in the course of

negotiations, and that the resulting November two year proposal as recom-

mended by the Union negotiating committee reflected good faith concession

and compromise by both parties.  It argues that no extenuating circum-

stances exist to justify a deviation from that proposed agreement in the

recommendation of the fact finder.

 

Union Position

 

            The Union does not contest that it did in fact come to agreement with

the Cities in November and that the proposed two year agreement was recom-

mended to the membership by the negotiating committee.  However, it con-

tends that the compromises embodied in the agreement were obviously unac-

ceptable to the membership and, therefore, the fact finder should exercise

independent judgement in making recommendations that would overcome the

major objections leading to rejection of the proposed agreement.

 

Discussion

 

            The crux of the instant case is how much deference is to be shown by

the Fact Finder in his recommendations to the November agreement between

the negotiating committees.  Several reasons exist for showing it great

deference and giving it controlling weight in the fact finder's deter-

mination.

 

            First, it is axiomatic that the role of a neutral third party in pro-

ceedings like this is to attempt in his determinations to arrive at a con-

clusion that might well have been arrived at had the parties been able to

conclude their negotiations.  In this case the duly authorized represen-

tative of the parties in the November agreement give a clear indication of

what they felt was a reasonable compromise on the range of issues being

contended here.  The record indicates the parties diligently negotiated

from essentially the same extensive factual that is revealed in the record

of this proceeding.  Both negotiating committees were lead by experienced

advocates who where well aware of what parties similarly situated have

found reasonable to agree to on the disputed issues. On the basis of this

information it was their best judgement that the November agreement was a

reasonable one, albeit not a totally satisfying one for either side. Noth-

ing in the record suggests either side was unaware of any relevant factor

normally and traditionally weighed in negotiations before concluding the

November pact, including. the sentiments and desires of the Union member-

ship.

 

            Second , future bargaining between the parties to this dispute--as well

as other parties similarly situated under RCW 41.56--would be seriously

handicapped if the fact finder were to alter the provisions of the November

agreement in his recommendations .  For , absent fraud , collusion or similar

extenuating circumstances , if bargained agreements are altered in proceed-

ings such as this simply because one side or the others constituency-be it

the Union membership or the City Council-refuses to concur with the recom-

mendation of its negotiating committee then the motivation of both parties

in future negotiations to put forth their best offers in an effort to reach

agreement during negotiations would be seriously undercut. Now the public

policy of the state of Washington as embodied in RCW 41.56 is to promote,

not retard, collective bargaining.  As an agent of the State this fact

finder is obligated to effectuate this policy.

 

            Third, in cases similar to this one impasse panels have typically

given controlling weight to negotiated settlements in their final deter-

minations . For example, one such panel concluded:

 

An examination of the wealth of evidence submitted in this matter

in conjunction with the provisions of settlement worked out by

the parties indicates that the most satisfactory award which the

Board could render would be one in general agreement with those

on which the parties were able at one time to substantially

agree .  Obviously, these terms are not what either party wanted.

They represent compromise by both parties.  However, since the

general terms indicate a meeting of the minds, the Board con-

siders that they hold the basis of a just award."¹

 

            In the instant case the fact finder would ask the Lynnwood police

officers represented by Local 763 to ask themselves how they would react if

the sides were reversed.  What would you feel if after your negotiating

committee concluded an agreement that was acceptable to you the City

Council rejected the settlement and a later decision of a fact finder or

arbitrator "took away" some of the provisions granted in that agreement.

This fact finder would venture to guess that your reaction would be one of

righteous indignation.

 

            During the pendency of this proceeding the fact finder has met with

the parties and suggested alternatives that both might pursue in an attempt

to settle this dispute short of the issuance of a formal recommendation.

These alternatives would have preserved the spirit but altered the letter

of the November agreement.  The fact finder would once again commend these

suggested alternatives to the parties .  However, as a matter of formal

recommendation he is constrained for the aforementioned reasons to find

that the November agreement constitutes a fair one in light of all the

factors set out for his consideration in PCW 41.56.  Therefore, he recom-

mends that the parties resolve their dispute on the basis of that agree-

ment.

 

Philip Kienast

5 April 1978

 

 

                                                   Appendix A

 

                                                            IN

                                                FACT-FINDING

 

 

CITY OF LYNNWOOD (Employer)            )

                                                                        )

                        and                                          )

                                                                        )

TEAMSTERS LOCAL # 763 (Union)          )           STIPULATIONS OF THE

Representing Police Uniformed                    )                PARTIES

Personnel                                                        )

________________________________        )

 

                                    I.          INTRODUCTION

 

The undersigned representatives of the Employer and Union met

on March 6, 1978, and agreed to the following stipulations and

joint exhibits in preparation for the fact-finding hearing

before Dr. Philip Kienast, Chairman of the Fact-finding panel,

scheduled for 9:3O a.m., Wednesday, March 15, at the Lynnwood

City Hall Council Chambers.  The following has been addressed

in accordance with the pre-hearing requests of the Chairman.

 

 

                                    II.        ISSUES

 

It is agreed that the issues before the fact-finding panel are

as follows:

 

            A.        Union membership

 

            B.        Training Under the Callback Article

 

            C.        Health and Welfare

 

            D.        Wages (including coordination of educational incentive

                        pay and longevity pay)

 

            E.         Duration of the Agreement

 

            F.         Performance of Duty Article

 

                                    III.       JOINT EXHIBITS

 

It is agreed that the following exhibits will be joint exhibits:

 

            Joint Exhibit  # 1                                1976-77 Labor Agreement

 

                                   # 2                                Agreement to Extend Time dated

                                                                        June 24, 1977

 

            Joint Exhibit  # 3                                History of Negotiations and Chron

                                                                        ology

 

                                    # 4                               Guarantee of Retroactivity and Joint

                                                                        Agreement between Negotiating Com

                                                                        mittees of Employer and Union,

                                                                        dated November 29, 1977.

 

                                    # 5                               Fact-finding request dated December

                                                                        22, 1977.

 

                                    # 6                               P.E.R.C. appointment of Chairman

                                                                        Kienast to Fact-finding Panel,

                                                                        dated January 23, 1978.

 

                                    # 7                               Joint Stipulation of Issues that

                                                                        are unresolved

                                                                        used for comparative purposes.

 

                                    # 8                               Joint Stipulation of Cities to be

                                                                        used for comparative purposes.

 

                                    # 9                               Joint Stipulation of Issues between

                                                                        the parties which have been resolved

                                                                        short of fact-finding.

 

                                    #10                              Letter from Cabot Dow to Russ Chris-

                                                                        tiansen confirming time and place

                                                                        for hearing.

 

 

                                    IV.       HISTORY OF NEGOTIATIONS

 

The history of negotiations is set forth and included in the par-

ties' joint exhibit #3.

 

 

                                    V.        COMPARISON CITIES

 

The Union and Employer are willing to jointly stipulate that the

cities of Auburn, Edmonds, Kent, Kirkland, Mercer Island, Mount-

lake Terrace, Redmond are the appropriate cities to be used for

comparative purposes.  Not withstanding that both parties reserve

the right to present evidence pertaining to Bellevue, Renton,

Bothell, Puyallup and Olympia since agreement could not be reached

on these cities.

 

 

                                    VI.       AGREEMENTS TO DATE

 

The parties have reached agreement on the following issues which

shall be incorporated into the labor agreement as follows:

 

            A.        Renumbering sections and calling them "Articles if in

                        accordance with Employer's August 29th proposal to the

                        Union.

 

            B.        Working out of class as agreed 7/26/77

 

            C.        Grievance procedure as agreed 7/26/77

 

            D.        Overtime as agreed

 

            E.         Holidays (10 designated holidays + the Employee's Birth-

                        day in lieu of the statutory floating holiday)

 

            F.         Sick Leave

 

            G.        Maintenance of Standards

 

            H.        Entire Agreement with mutual re-opener clause added

 

            I.          Drop War clause

 

            J.         Definitions

 

            K.        All other articles will remain (with the exception of

                        numerical order) the same as in the 1976-77 labor

                        agreement.  The other articles are as follows:

 

                                    Bargaining' Unit

 

                                    Payroll Deductions

 

                                    Work week

 

                                    Off Duty Time

 

                                    Lunch Breaks

 

                                    Vacations

 

                                    Emergency Leave

 

                                    Uniform Allowance

 

                                    Management's Rights

 

                                    Police Officers' Bill of Rights

 

                                    Discrimination

 

                                    Savings Clause

 

 

                                    VII.     SUMMARY OF PARTIES POSITION

 

In order to outline the positions of the parties before the Chair-

man of the Fact-finding Panel, a joint summary is provided and

attached hereto as Appendix "A".

 

                                    VIII.    Single Fact Finder

 

Respectfully submitted,

 

Cabot Dow                  Russ Christensen

For the Employer       For the Union

 

Dated this 13th  day of March, 1978.