IN THE MATTER OF
WALLA WALLA COUNTY,
WASHINGTON
AND
WALLA WALLA COUNTY
DEPUTY SHERIFF 'S ASSOCIATION
PERC No.: 16895-I-02-0389
Date Issued: July 28, 2003
INTEREST ARBITRATION OPINION AND AWARD
OF
ALAN R. KREBS
Appearances :
WALLA WALLA COUNTY,
WASHINGTON Ronald J. Knox
WALLA WALLA COUNTY
DEPUTY SHERIFF'S ASSOCIATION Steven Schuback
OPINION OF THE ARBITRATOR
PROCEDURAL MATTERS
In accordance with RCW 41.56.450, an interest arbitration
hearing involving certain uniformed personnel of Walla Walla
County was held in Walla Walla, Washington on March 25 and May 5
and 6, 2003. The parties agreed to waive the statutory provision
which calls for an arbitration panel consisting of three members.
Instead, as authorized by WAC 391-55-205, the parties agreed to
have the matter presented before a single arbitrator, Alan R.
Krebs. Walla Walla County was represented by Ronald J. Knox of
the law firm Garvey Schubert Barer, PPC. Walla Walla County
Deputy Sheriff's Association was represented by Steven Schuback
of the law firm Garrettson, Goldberg, Fenrich & Makler.
At the hearing, the testimony of witnesses was taken under
There was oath and the parties presented documentary evidence.
no court reporter, and therefore, the Arbitrator tape recorded
the proceedings as required by RCW 41.56.450.
The parties agreed upon the submission of post-hearing
briefs. The Arbitrator received the briefs on June 13 and 16,
2003.
APPLICABLE STATUTORY PROVISIONS
Where certain public employers and their uniformed personnel
are unable to reach agreement on new contract terms by means of
negotiations and mediation, RCW 41.56.450 calls for interest
arbitration to resolve their dispute. The parties agree that RCW
41.56.450 is applicable to the bargaining unit of deputy sheriffs
involved here. Arbitrators are generally mindful that interest
arbitration is an extension of the bargaining process. They
recognize those contract provisions upon which the parties could
agree and decide the remaining issues in a manner which would
approximate the result which the parties would likely have
reached in good faith negotiations considering the statutory
criteria.
RCW 41.56.465 sets forth certain criteria which must be
considered by an arbitrator in deciding the controversy:
RCW 41.56.465 Uniformed personnel--
Interest arbitration panel--Determinations--
Factors to be considered. (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
41.56.430(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) . . .
(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 inthe determination of
wages, hours, and conditionsof employment....
* * *
RCW 41.56.430, which is referenced in RCW 41.56.430, sets
forth a public policy against strikes by uniformed personnel, and
recognizes that there should be an effective alternative means of
settling labor disputes involving such groups so as to promote
"dedicated and uninterrupted public service."
RCW 41.56.430
Uniformed personnel --Legislative declaration. The intent and
purpose of this 1973 amendatory act is to
recognize that there exists a public policy
in the state of Washington against strikes by
uniformed personnel as a 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 Washington; that to
promote such dedicated and uninterrupted
public service there should exist an
effective and adequate alternative means of
settling disputes.
ISSUES
The Association represents 19 commissioned deputies of the
Walla Walla County Sheriff's Office, including two detectives and
three sergeants. The Association and the County are parties to a
collective bargaining agreement which had an expiration date of
December 31, 2001. They were unable to reach an agreement on a
new contract despite their efforts in negotiations and the
assistance of a mediator. In accordance with RCW 41.56.450, the
Executive Director of the Washington State Public Employment
Relations Commission certified that the parties reached an
impasse on a number of issues relating to 17 articles of their
collective bargaining agreement. Afterwards, the parties reached
agreement on a number of these matters. The issues remaining to
be resolved in arbitration are:(1)
Article 5. Work Schedule
Article 8. Sick Leave
Article 13. Health Insurance
Article 14. Wages
Article 15. Discipline and Discharge
Article 16. Grievance Procedures
Article 17. Association Business
Article 20. Education Incentive
Article 21. Use of Reserves
Article 24. Departmental Investigation
Procedures & Employee Rights
The parties agreed that the new agreement should be for three
years: 2002, 2003, and 2004.
_________________
1 Certified issues which were resolved prior to arbitration were Article 1 -
Recognition, Article 6 - Vacation, Article 7 -Holidays, Article 12 -
Sabbatical Leave, Article 19 - Special Duty Compensation, Article 2 2 -
Integration, and Article 25 - Length of Contract.
NATURE OF THE EMPLOYER
Walla Walla County is situated in Southeastern Washington
and has a population of 55,180. The Walla Walla County Sheriff's
Office directly serves a population of over 18,000 persons who
reside in unincorporated areas of the County and in two small
cities. It also provides backup to other law enforcement
agencies, including the City of Walla Walla Police Department.
The Sheriff's Office has an experienced workforce averaging about
nine years of service, with none having less than about three
years. Since 1998, the County has experienced a 26 percent
increase in calls for service, and it has added five deputies.
According to a report prepared by the Sheriff, the staffing level
maintained by the Sheriff's Office is almost 25 percent below the
state average for similarly sized counties.
COMPARABLE JURISDICTIONS
One of the primary standards or guidelines enumerated in RCW
41.56.465 upon which an interest arbitrator must rely in reaching
a decision is 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." The parties agree that Douglas, Franklin, Grant,
Kittitas, and Whitman Counties are "like employers" which are
appropriately comparable to Walla Walla County. The Association
proposes as additional comparable jurisdictions, Chelan, Clallam,
Grays Harbor, Mason, and Lewis Counties, as well as the City of
Walla Walla.
The County urges the Arbitrator to utilize only Douglas,
Franklin, Grant, Kittitas, and Whitman Counties as comparators
because they were the Counties relied on by Arbitrator Greer in
reaching his interest arbitration decision with regard to the
predecessor contract to the one at issue here. PERC Case No.
14798-I-99-327 (May 15, 2000). The County argues that it is
inappropriate to continually change the comparators because the
prior decision should have given the parties some predictability
and a basis on which to proceed in future negotiations.
asserts that the counties which it proposes are geographically
proximate and compare favorably on the basis of population,
property valuation, geography, revenue base, miles of country
road, and nature of the economy. With regard to the
Association's suggested comparators, the County notes that with
two exceptions, all fall within a band of 50% to 150% in both
assessed valuation and total population when compared with Walla
Walla County. The County observes that Chelan and Clallam
Counties do not fall within this band, and that two Eastern
Washington Counties, Okanogan and Stevens, do fall within this
band, but are not included in the Association's suggested
comparators. The County maintains that since there are a
sufficient number of comparables in Eastern Washington, there is
no need to rely on comparables situated in Western Washington,
which are not geographically proximate.
The Association, in its brief, "recognizes the value of
Arbitrator Greer's comparables and decided to present an average
or blended set" 'which take into account a wider range of
jurisdictions." It asserts that its proposed comparators 'allows
for a better weighted group which includes a 150%-50% population
range." The Association contends that Western Washington
comparators should not be excluded because "the ability to
travel, tele-commute, and change job locations has eroded the
illusion of an East/West barrier." The Association maintains
that the County shares characteristics with more urban areas
inasmuch as it has the second highest population density among
its suggested comparable jurisdictions. The Association suggests
that the Walla Walla Police Department should be used as a
comparator because both it and the Sheriff's Office are located
in the same town and have daily contact with one another. The
Association argues that the terms and conditions of employment at
the Walla Walla Police Department are a definite factor in
employment decisions for employees of the County. The
Association further argues that inasmuch as the comparators which
were utilized by the arbitrator in the previous arbitration
decision have not all yet reached agreement on a new contract,
"[i]t would be difficult to gain [a] balance[d] perspective of
the current market."
I have selected five county sheriff's offices which are
"like employers of similar size" as comparable jurisdictions:
Douglas County
Franklin County
Grant County
Kittitas County
Whitman County
These are the geographically closest five counties to Walla Walla
County which fall within population and assessed valuation bands
of between 50% and 150% of Walla Walla County:
COUNTIES POPULATION ASSESSED VALUATION
Douglas 33,100 $1,783,283,541
Franklin 51,300 $2,157,303,384
Grant 76,400 $3,996,100,114
Kittitas 34,800 $2,220,702,327
Whitman 40,600 $1,639,271,884
Walla Walla 55,400 $2,683,452,105
Both parties recognize that a band of between 50% and 150% is an
appropriate measurement to determine "like employers of similar
size" as required by RCW 41.56.465 (c ) (1). As the County points
out in its brief, some arbitrators have utilized the 50%-150%
measurement to compare both population and assessed valuation and
thereby determine a group of comparable jurisdictions. The five
sheriff's offices which have been designated here as comparable
jurisdictions are the same five sheriff's offices which
Arbitrator Greer designated as comparable jurisdictions in the
parties' interest arbitration for their predecessor agreement.
That arbitration was conducted during the year preceding
negotiations for the contract at issue here. Ordinarily, the
comparable jurisdictions designated by the parties' interest
arbitrator should provide guidance for their next round of
negotiations, particularly where, as here, they commence so soon
afterwards. If those negotiations lead to another round of
interest arbitration, it should be expected that the new interest
arbitrator would give significant weight to a recent
determination of comparable jurisdictions by the previous
interest arbitrator. Such consideration tends to add stability
to the parties' collective bargaining relationship by encouraging
a common basis for their negotiations. While the determination
of the comparable jurisdictions in the previous interest
arbitration is not binding in this proceeding, a party seeking a
deviation from that prior finding should provide a convincing
argument either that there are changed circumstances or that the
determination of the prior interest arbitrator was wrong.
Neither has been established here. While it is unlikely that I
would have chosen the same list of comparators as Arbitrator
Greer if there had been no precedent established, there has been
no cogent argument why it should not be followed in these
proceedings. The Association proposes as additional comparators,
Chelan and Clallum Counties, which each have assessed valuations
greater than 150% that of Walla Walla County. It proposes as
comparators other counties in Western Washington which fall
within the 50%-150% bands for population and assessed valuation,
namely Mason, Lewis, and Grays Harbor Counties. At the same
time, it ignores Okanogan and Stevens Counties, which also fall
within the designated parameters for population and assessed
valuation, but are arguably more significant since they are
Eastern Washington Counties, which presumably have more in common
with Walla Walla County. I am not persuaded by the Association's
argument that Walla Walla County shares characteristics with more
urban areas because of its population density. It fact, it
appears that Walla Walla County is rather thinly populated aside
from the City of Walla Walla, which has its own police
department. It is inappropriate to consider the Walla Walla
Police Department as one of the primary comparators because the
statute requires a comparison with "like employers of similar
size." A city is not like a county. They are different in
structure, taxing authority, and responsibility. Moreover, there
was no evidence that the City of Walla Walla and Walla Walla
County are 'of similar size." It just cannot be reasonably said,
based on the record presented, that the City of Walla Walla is a
'like employer of similar size" which is a statutory requirement
to be considered as a primary comparator. The fact that several
of the selected comparators have not yet achieved settlement on a
new agreement for 2002 and/or 2003, does not invalidate the
selected list. These comparators will still sufficiently
demonstrate the prevailing contract terms.
COMPENSATION COMPARISONS
For the most part, the parties are in agreement about how
compensation comparisons should be made between the County and
the selected comparable jurisdictions. They each would determine
total compensation by totaling monthly base wages, longevity pay,
insurance, vacation pay, and holiday pay. The Association would
add education incentive pay for a bachelor's degree, while the
County would omit this benefit for purposes of compensation
comparison. Education incentive pay is a part of total
Compensation. For comparison purposes, the education incentive
for an associate's degree will be included. Generally, where
education incentive is provided for uniformed services, a higher
monetary incentive is given for a bachelor's degree than for an
associate's degree. Utilizing the incentive for an associate's
degree would be more reasonable than selecting either of the
extremes, i.e., an employee with a bachelor's degree or an
employee with no higher education. The County would add
sabbatical leave to the vacation benefit, while the Association
would omit this. Article XII of the parties' agreement provides
a schedule for days off for 'sabbatical leave" which "shall be in
addition to the vacation" leave in recognition of the "unusual
occupational stress." It appears that the sabbatical leave
serves, in effect, as additional vacation leave and it shall be
considered as such in the compensation comparison. Kittitas and
Whitman Counties have not yet settled their contracts for 2002.
Douglas County has not yet settled its contract for 2003. In
making their comparisons, both the County and the Association
assumed that each provided a 2.3% base wage increase for each
unsettled year based upon the 2001 cost of living increase, and
that assumption will be adopted here. Thus, the table below
reflects the 2003 wages as adjusted for the counties which have
not yet settled, and the unadjusted wages provided by Walla Walla
County, reflecting the wages they currently receive based on the
1999-2001 Agreement. The monthly compensation comparison
reflected in the table below utilizes a benchmark of a deputy
with ten years experience, since that is close to the average in
the bargaining unit.
------------------------------------------------------------------------------------------
County Adjusted Longevity Education Insurance Total Vacation Holiday Total
Base Incentive Paid Pay Pay Compensation
Wage -Assoc.Deg.
(2003) By By
Employee Employer
Franklin $3,811 76 0 0 698 249 161 $4,995
Grant 3,845 117 20 0 1,002 421 162 5,567
Douglas 3,637 25 73 -335 680 223(2) 153 4,456
Kittitas 3,316 39 0 -767 474 248(2) 140 3,450
Whitman 3,489 0 0 -642 615 268(2) 147 3,877
Average 4,469
(2003)
Walla Walla 3,605 40 0 -351 731 277 152 4,454
(2001) (2001)
_____
2 The figures provided by the parties differed slightly with regard to the
vacation pay provided by Douglas, Kittitas, and Whitman counties. I have
utilized the Association's figures since these correspond with the hourly wage
rate agreed upon by the parties in their identical holiday pay figures.
------------------------------------------------------------------------------------------
The total compensation provided to the Walla Walla deputies at
the end of their last contract compares favorably with the
average of the selected comparables, particularly when a
compensation increase for the new agreement is factored in.
COST OF LIVING
RCW 41.56.465 (d) requires consideration of "[t]he average
consumer prices for goods and services, commonly known as the
cost of living." The County provided evidence of the Consumer
Price Index for Urban Wage and Clerical Workers (CPI-W) for the
Seattle area during 2002. This measurement of consumer price
increases published by the U.S. Department of Labor reflects an
increase in December 2001 of 2.3% over the previous year, and an
increase of 1.9% in December 2002 over the previous year.
Inasmuch as the governing statute requires the Arbitrator to
consider the cost of living, significant weight shall be given to
the relatively modest changes in the cost of living during 2001
and 2002.
OTHER CONSIDERATIONS
In addition to the specific criteria set forth in RCW
41.56.465 (a) - (e) , RCW 41.56.465 (f) directs the Arbitrator to
consider '[s]uch other factors ... that are normally or
traditionally taken into consideration in the determination of
wages, hours, and conditions of employment." Accordingly the
factors discussed below, have been considered.
ABILITY TO PAY
A factor frequently raised in contract negotiations and also
considered by arbitrators is the ability to pay wage and benefit
increases.
The County has not argued that it is financially unable to
provide fair wages and benefits to its employees. To the
contrary, it asserts providing such fair compensation is in its
interest. The Association presented evidence that the County is
in good economic status. In recent years, the County has
maintained a healthy year-end balance while making a number of
capital improvements without incurring debt. These included a
new public safety building at a cost of $2.4 million and a new
Road Department building at a cost of $800,000. The County has
the ability to provide fair compensation to its employees.
Turnover
Interest arbitrators are likely to consider whether the
compensation package provided to employees is sufficient to
retain them and to attract qualified applicants. The Association
presented evidence that because of better working conditions
provided by the City of Walla Walla, it has an advantage over the
County in attracting new hires. In this regard, it established
that a County jailer who was offered a job with the Sheriff's
Office, turned it down to accept a job with the Walla Walla
Police Department. Also, during July 1996, a deputy left the
Sheriff's Office to take a job as an officer with the Walla Walla
Police Department. Since that time, no employees have resigned
for any reason. The last time employees were hired by the
Sheriff's Office was during 2000. There is no indication that
the County was unable to attract qualified applicants. It
appears that the current compensation package is sufficient to
attract and retain qualified personnel.
Settlements With Other Bargaining Units
The County urges consideration of the wage increases and
insurance packages received by County employees who are not in
the deputy sheriff bargaining unit. As I have recognized in
other interest arbitration proceedings, consideration of
compensation settlements achieved by other groups of employees
within the subject jurisdiction is appropriate. From the
standpoint of both the employer and the union, the settlements
reached with other bargaining units are significant. While those
settlements are affected by the particular situation of each
individual bargaining unit, still there is an understandable
desire by the employer to achieve consistency. From the union's
standpoint, it wants to do at least as well for its membership as
the other unions have already done. At the bargaining table, the
settlements reached by the employer with other unions are likely
to be brought up by one side or the other. Other interest
arbitrators have given some weight to internal parity. Thus, it
is a factor which should be considered by the Arbitrator.
The County has reached agreement with its three other
bargaining units for the years 2002, 2003, and 2004. Jail
employees agreed to wage increases of 3% in 2002, 1.5% in 2003,
and 1.5% in 2004. The bargaining units for Courthouse and Public
Works employees each agreed to 3% increases in 2002 and 2003, and
no additional increase in 2004. Department heads were given
raises of 2% in 2002 and 3% in 2003. No County employees other
than the deputies receive an employer contribution for dependent
medical coverage.
ARTICLE V - WORK SCHEDULE
1. SHIFT BIDDING
The Association proposes to add the following language to
Section 5.1 of the Agreement:
Work Schedule. The work schedule shall for the
ensuing calendar year be posted no later than
December 15th of the year preceding the bid year.
The schedule shall provide for three equal rotation
periods. Employees shall prior to the start of the
bid year on the basis of seniority select a shift and
days off for each of the three rotation periods.
Currently, there is no employee shift bidding. Some employees
who have specialized assignments work a set schedule for all or
most of the year. Most deputies rotate schedules. They rotate
between working nights for six months and then days for six
months. Their days off change every three months. Deputy Tom
Cooper, the Association President, testified that employees
usually get less than 30 days notice of their next rotation of
days off. Deputy Cooper testified that this lack of notice
causes difficulties in scheduling personal activities, such as
doctor appointments, college classes, and child care. The
Association argues that its proposal is vital to the improved
morale of the group.
The County argues that this proposal would be devastating to
the effective operation of the Department. It relies on the
testimony of Sheriff Mike Humphreys that the Association's
proposal could result in an imbalance in experience on a shift if
all senior employees select a particular shift. He testified it
could also result in new employees leaving the County if they
consistently work nights with unfavorable days off. Sheriff
Humphreys testified that he tries to accommodate employees who
have a scheduling need because of family circumstances. He
testified that he is unaware of any complaints or a morale
problem related to the current scheduling method. Deputy Cooper
responded to Sheriff Humphreys by testifying to his belief that
with shift bidding there would still be a good mix of experience
during shifts. Dana Bennett, a research analyst for the
Association's law firm, testified that two or three comparable
counties have shift bidding, but she could not recall which ones.
I am not persuaded that there should be any new language
regarding shift bidding. There is insufficient evidence that any
of the selected comparable employers have such a contract
provision. Moreover, the testimony of Deputy Cooper was general
in nature and was not persuasive that the current practice was
unfair to employees. There was no evidence of specific
scheduling problems suffered by an identified employee which was
not or could not be accommodated.
2. CALL IN PAY AND COURT TIME
The Association requests that Sections 5.2.2 and 5.2.4 be
modified so as to increase guaranteed call in pay and court time
from two hours at the overtime rate to three hours. Currently,
employees receive a guaranteed minimum of two hours of overtime
whenever they are called back to w o r k after the completion of
their regular shift or when they are called to appear in court
outside of their regular work hours. The Association argues that
deputies should receive increased compensation for their
sacrifice of more time at work at the cost of being with family,
resting, or attending to other personal responsibilities. The
Association contends that its proposed increase in call in pay
and court time is justified by a review of the practice of
comparable jurisdictions. The Association presented evidence
that Franklin, Grant, Douglas, and Whitman Counties each provide
a minimum of three hours of call in overtime, and that Kittitas
County has a four hour minimum. The County contends that an
increase in call in pay and court time is unjustified. The
County points out that if a deputy does not spend two hours on
the call in or in court, he or she still receives two hours of
pay at the overtime rate.
It shall be ordered that Sections 5.2.2 and 5.2.4 be
modified to reflect an increase in the guaranteed minimums for
call in pay or court time to three hours. The current practice
of a two hour overtime minimum in such circumstances is
inconsistent with the practice of all of the comparable
jurisdictions. In fact, all of them provide a guaranteed minimum
of at least three hours of overtime for call in pay or court
time. There is no demonstrated reason for the County's benefit
in this regard to be below the standard.
3. COMPENSATORY TIME
Section 5.3 of the 1999-2001 contract provides:
Employees may elect to accrue compensatory leave in
lieu of overtime pay. Compensatory time shall be
earned at the rate of one and one-half (1-1/2) times
the hours worked. Compensatory time may be
accumulated up to sixty (60) hours. Any compensatory
time that the employee earns in excess of (60) hours
shall be paid to the employee at the rate of one and
one-half hours overtime pay. At the time this
contract is ratified, any member of the association
with over sixty hours of compensatory time shall be
cashed out for those hours in excess of sixty, at the
employees straight time rate. Scheduling of
compensatory time shall be by mutual agreement of the
Employer and the employee.
The Association proposes to amend this language to read:
Employees may elect to accrue compensatory leave in
lieu of overtime pay. Compensatory time shall be
earned at the rate of one and one-half (1-1/2) times
the hours worked. Compensatory time may be
accumulated up to one hundred twenty (120) hours.
Any compensatory time that the employee earns in
excess of (120) hours shall be paid to the employee
at the rate of one and one-half hours overtime pay.
Scheduling of compensatory time shall be in
accordance with the FLSA.
The County proposes that Section 5.3 read:
Employees may request compensatory time in lieu of
overtime pay. The Employer shall determine whether
compensatory time is granted to the employee when
such time is requested in lieu of overtime.
Compensatory time shall be earned at the rate of one
and one-half (1-1/2) times the hours worked.
Compensatory time may be accumulated up to sixty (6 0 )
hours. Any compensatory time that the employee earns
in excess of (60) hours shall be paid to the employee
at the rate of one and one-half hours overtime pay.
The Employer may designate specific times in which
employees must use their compensatory time. Absent
specific direction, scheduling of requested
compensatory time off shall be by mutual agreement of
the Employer and the employee. If no agreement can
be reached, the Employer will schedule the requested
compensatory time off within a reasonable period
after the request has been made, considering the
normal work schedule, existing workloads,
availability of replacement staff, and so long as
granting the request does not unduly disrupt the
operation of the department.
The Association contends that an increase in the
compensatory time bank cap to 120 hours is justified by the
practice of the comparable jurisdictions. It argues that 'a
higher cap is preferred by the [d]eputies, and would be
beneficial to their working conditions." The County urges
rejection of the Association's proposal. It contends that such
changes are unjustified by reference to the practice of the
comparable jurisdictions and would put considerably more pressure
on the limited resources of the Sheriff's Office. The County
asserts that testimony established that there have been few
arguments, if any, concerning the use of compensatory time.
Finally, the County maintains that if any change is warranted,
its suggested changes are simply more appropriate.
The comparable jurisdictions provide as follows with regard
to caps for compensation time:
Douglas County no cap, must use in 60 days
Franklin County 40 hours
Grant County 100 hours
Kittitas County 40 hours
Whitman County no cap
Deputy Cooper testified that the County pays for all overtime
worked above the 60 hours cap. He further testified that the
County does pretty well in accommodating employees' requests to
use compensatory time, if staffing levels permit.
None of the changes to the compensatory time language shall
be adopted, with the exception that the next to last sentence of
the current language shall be deleted. Both parties agree upon
that deletion. There has been no showing that the current
language is out of line with the comparable jurisdictions or
otherwise unfair. The County has not provided justification for
its proposed changes.
4. TRAINING TIME
Section 5.5 of the 1999-2001 contract reads:
Any employee who is required to attend job training
during off-duty hours whether in the County or
outside of the County will be given compensatory time
on a one and one-half hour basis.
The Association proposes adding the following words to the end of
this sentence:
including time spent traveling to and from the
training center.
The County opposes this addition, arguing that "[i]t is not in
the public interest to provide this gratuitous payment in light
of the many other economic demands on the County."
No change to Section 5.5 shall be awarded. The proposed
change was neither justified by reference to any prevailing
practice of the comparable jurisdictions, nor by any other
supportive argument.
ARTICLE VLLL - SICK LEAVE
1. BUY BACK
Section 8.2 of the 1999-2001 contract reads:
Employees shall accrue sick leave at the rate of one
(1) day each month worked, to be used in the event
illness. Twenty five percent (25%) of accrued sick
leave, up to a maximum of thirty (30) working days
shall be paid off upon retirement of the employee
after twenty (20) years of service.
The Association proposes to increase the buy back percentage to
50% and to make it applicable to termination as well as
retirement. The Association argues that its proposed changes
would put Walla Walla deputies in a more similar position to
their counterparts in comparable departments. The County rejects
this proposal because of the increased costs and because it has,
over the years, attempted to reduce this unfunded liability in
each of its collective bargaining agreements. The County
proposes to eliminate consideration of sick leave buy back when
determining retirement benefits, by adding the following
provision to Article VIII:
8.7 The parties mutually agree that a cash out of
unused accrued sick leave, compensatory time, or any
other claimed accumulation of unused time off shall
not be included in calculation of the employee's
retirement pension. All excess compensation as
defined by applicable State law, is deemed never to
have existed for the purposes of employee pension.
The County and the Association and the employees
recognize that the Department of Retirement Systems
will be notified of these payments but they shall not
be included in the calculation of the employee's
final average compensation.
The Association urges rejection of the County's proposed Section
8.7, arguing that it is an attempt to take away benefits in order
to reduce its costs.
Douglas and Whitman Counties provide no buy back of
accumulated sick leave at retirement. Kittitas County provides
no sick leave buy back for employees hired since 1985, but
grandfathers a 25% buy back upon a break in seniority for
employees hired before that. Franklin County provides a 25% buy
back upon termination. Grant County provides a 50% buy back upon
retirement, a 25% buy back upon termination by an employee in
good standing after 10 years of service, and, in case of death, a
100% buy back of accumulated sick leave up to 120 days. Walla
Walla County's three other bargaining units receive a 25% buy
back of accumulated sick leave at retirement, except that road
crew employees hired before 1999 receive a 50% buy back.
No change shall be ordered with regard to either Section 8.2
or the proposed new Section 8.7. The changes requested are not
supported by reference to prevailing practices among the
comparable jurisdictions. The current practice is not inherently
unfair.
2. SICK LEAVE - FAMILY DAYS
The first sentence of Section 8.4 of the parties' 1999-2001
contract reads:
Sick leave, not to exceed three (3) days per year,
may be used in the event of illness to a member of
the employee's immediate household.
Both parties agree to remove the three day limitation regarding
the use of sick leave in the event of illness of a family member.
Based on the agreement of the parties, it shall be ordered
that the limiting phrase, "not to exceed three (3) days per
year," shall be removed from Section 8.4.
3. DOCTOR'S VERIFICATION OF ILLNESS
The County proposes the addition of the following sections
to Article VIII:
A doctor's certificate of illness shall, at the
Employer's timely request, be submitted by the
employee at the time the employee returns to work,
when he/she is absent because of illness or injury.
If the Sheriff or his/her designee suspect sick leave
abuse, immediate verification of the illness or
accident may be requested and must be provided by the
employee.
The County argues that all of the comparable jurisdictions
require an employee to provide verification of illness upon
request. The Association did not propose any new language in
this regard. However, it states, in its brief, that it "is not
opposed to providing a doctor's certification if necessary," but
not for every illness. The Association submits that "[t]he
correct language to have would be comparable to other
jurisdictions which only require a doctor's note after three (3)
days of illness." The Association asserts that requiring a
doctor's note for any use of sick leave would increase the cost
of health insurance. The Association argues that Section 8.6, as
proposed by the County, is unnecessary as the County failed to
present any testimony of abuse of sick leave.
The comparable counties have the following contract
requirements:
County Doctor's Verification
Douglas "at the Employer's timely request''
Franklin "may be required"
Grant "may be required"
Kittitas "may be required for absence of three
days or more"
Whitman "must be provided after three days"
Inasmuch as all of the comparable jurisdictions allow for an
employer's request for verification of illness, it shall be
awarded that the following new provision be added to the
Agreement:
8.5 A doctor's certificate of illness shall, at the
Employer's timely request, be submitted by the
employee for an absence of three days or more, or
whenever abuse of sick leave is reasonably suspected.
ARTICLE XLLL - HEALTH AND WELFARE
1. GROUP INSURANCE
Section 13.1 of the 1999-2001 contract provides for
the County to pay 100% of the health insurance premium for
employees and 50% of the premium for dependent coverage.
The Association proposes, and the County opposes, that the
County pay 100% of the premium for dependent coverage.
The Association argues that 100% dependent coverage
is justified in order to meet the needs of the deputies'
families and to bring their health insurance benefits to
the level of other jurisdictions. The Association asserts
that most deputies cannot afford to pay 50% of the cost of
dependent coverage. In this regard, it relies on the
testimony of Deputy Kenton Boyd to the effect that his
family does not have insurance coverage because he could
not afford the $370 monthly cost for 50% of the dependent
premium. The Association questions why the County's
insurance is so expensive, arguing that the County
artificially limits dependent coverage by making it more
expensive than employees could afford. The Association
points out that some other counties do not require an
employee contribution for health insurance. The
Association argues that the fact that deputies receive
better health insurance coverage than other employees of
Walla Walla County should be disregarded, since law
enforcement agencies generally have better benefits
because of the training and risk required of the work.
The Association maintains that the County can afford the
additional cost of providing full dependent health
coverage.
The County argues that no increase in dependent
insurance coverage is justified by reference to the
comparability data. It suggests that providing dependent
care coverage would completely alter the internal equity
for compensation by County employees, inasmuch as, no
other County employees receive dependent medical coverage
The County offers a choice of two health plans, a
standard preferred provider plan (PPO) and a group health
plan. The County provided the following comparison of
costs incurred for health insurance with dependent
coverage, utilizing in each case the less expensive
option:
County Pays Employee Pays
Douglas County 536 230
Franklin County 485 255 or 0(3)
Grant County 845 0
Kittitas County 421 564
Whitman County 457 434
Walla Walla County 724 370
________________
3 The Association presented evidence that in Franklin County deputies
effectively pay nothing for dependent coverage, since those costs have been
covered in full by a contribution pool established from the amounts left over
under the contribution cap from employees who have health plans costing less
than the cap.
No change shall be ordered with regard to the County payment
The County's contribution towards for dependent health coverage.
the cost of health insurance is not out of line with the
situation in the comparable jurisdictions. Moreover, it is
significant that the deputies are already receiving a higher
level of health insurance benefits than all other County
employees. The fact that one, or even several, deputies have
decided that they cannot afford to pay 50% of the dependent
premium does not establish that the dependent coverage benefit is
a hollow one. There was no evidence that dependent coverage
benefit is generally rejected by eligible deputies because of the
substantial employee contribution which is required. There is no
basis in the record presented to support the Association's
suggestion that the County is overpaying for health insurance, or
even that the Association has suggested or proposed consideration
of a less expensive plan.
2. LIFE INSURANCE
Section 13.3 of the 1999-2001 contract requires the County
to maintain a $24,000 life insurance policy for its deputies.
The Association proposes that the policy amount should be
increased to $48,000. It reasons that the existing coverage is
only worth about six month's salary and fails to reflect a
deputy's worth or risk of death on the job. The County opposes
any increase in life insurance. It argues that the current life
insurance coverage recognizes the risk which is part of the job.
The comparable jurisdictions provide the following levels of
life insurance for their deputies:
Douglas County $ 0
Franklin Count $24,000
Grant County 15,000
Kittitas County 12,000
Whitman County 40,008
Walla Walla County 24,000
Deputies receive additional life insurance from the federal
government which provides coverage if they are killed in the line
of duty.
No change in the current level of life insurance shall be
The current level of this benefit compares favorably awarded.
with that provided by the comparable jurisdictions.
ARTICLE XIV - WAGES
1. BASE WAGE ADJUSTMENTS
The Association proposes a 6% wage increase for 2002, a 6%
increase for 2003, and a 6% increase for 2004. The County
proposes a 2% wage increase for 2002, a 2% increase for 2003, and
a 2% increase for 2004. The Association argues that its proposed
6% yearly wage increase is needed in order to prevent further
erosion of the deputies' compensation in relation to the market.
The Association asserts that its wage proposal is merited based
on the higher population density of Walla Walla County,
higher call loads and lower staffing, the poor working condition
of having no back up coverage, and the deputies' underpaid
salaries. The County argues that its proposed increases are
supportable in light of the consumer price index information, a
comparison to the wage increases received by the other three
bargaining units which have reached agreement with the County,
and most importantly, by the comparability data.
Weighing the governing factors which are set forth in the
statute, wage increases will be awarded for 2002 in the amount of
2.3%, for 2003 in the amount of 2%, and for 2004, in the amount
of 2%. The statute requires consideration of the cost of living,
and these wage increases approximate the increases in the cost of
living. The overall compensation increase for the bargaining
unit will exceed the cost of living, factoring in other financial
benefits which will result from this Award, including a new
education incentive benefit which I have valued at a 2% increase
in compensation, 4 and a 50% increase in the minimum payment for
call ins and court time. The statute also requires consideration
of terms and conditions of employment of comparable
jurisdictions. As a result of the awarded increases, the total
compensation received by the deputies will remain above the
average of the comparable jurisdictions. In relation to these
comparators, the bargaining unit will very likely retain its
position as third out of six. Also considered, as required by
statute, are other factors traditionally considered by interest
arbitrators. Thus, I have considered that the County's healthy
financial situation allows for the ability to pay a fair and
reasonable compensation increase. Also considered was the high
productivity reflected in the relatively high number of calls per
deputy. Such higher workload levels provide justification for
the above average compensation which the deputies receive. The
compensation levels appear adequate to retain employees as the
level of turnover in the Sheriff's Office has been low. Another
factor considered was the wage settlements which the County has
already achieved with its three other bargaining units. The wage
increases awarded here are not out of line with those
settlements. In sum, the awarded wage levels are appropriate
considering the compensation provided by the comparable
jurisdictions, the cost of living, and other factors normally
taken into consideration in the determination of wages, such as
productivity, turnover, and the wage increases provided by the
County to other employee groups.
_____________
4 This valuation is based on the education incentive awarded for employees
with an associate's degree. The Association utilized its proposed education
incentive for a bachelor's degree or purposes of valuating and comparing
total compensation. Employees with a bachelor's degree will receive a 4%
increase in addition to the base wage increase.
2. DEFERRED COMPENSATION
The Association proposes a new deferred
compensation benefit to be inserted into the contract as Section 14.3:
In addition to the wages provided for in
Appendix A, the Employer shall match Employee
contributions to their deferred compensation accounts
as follows:
1) Contributions made during 2002, up to 1% of
salary.
2) Contributions made during 2003, up to 2% of
salary.
3) Contributions made during 2004 and
thereafter, up to 3% of salary.
The Association argues that such retirement savings plans are
very important in today's economy and would encourage employees
to stay with the County. The Association asserts that
implementation of this plan would be a minimal cost because the
term of the new contract is already half expired. The County
opposes this proposal since deferred compensation is not offered
to any County employee and is not supported by reference to the
comparable jurisdictions.
No deferred compensation shall be awarded. None of the
comparable jurisdictions provide a deferred compensation benefit,
and no other County employee has such a benefit. I am not
persuaded by the Association's argument that a deferred
compensation benefit is needed in order to retain employees. The
County has not experienced a significant turnover problem in this
bargaining unit.
3. SHIFT DIFFERENTIAL PAY
The Association proposes a new shift differential benefit to
be inserted into the contract as Section 14.4:
Employees who [sic] shift starts on or between 6 :00
pm and 2:00 am shall receive an additional amount
equal to two percent (2%) of base salary for all
hours worked on said shift as well as all overtime
hours adjacent thereto.
The Association contends that the sacrifices for working
graveyard shifts are hardly disputed and deserve some additional
compensation. In this regard, Deputy Cooper testified that
adjusting to the graveyard shift is physically very difficult.
He testified that he must sleep while his family is awake, and he
has to attend family functions with little sleep. Deputy Cooper
testified that graveyard shifts are generally more dangerous,
particularly since there is more likely to be little or no backup
when it is needed. The County opposes a new shift differential
benefit.
No shift differential benefit shall be awarded. None of the
comparable jurisdictions offer such a benefit. There is no need
to provide an incentive to work graveyard shifts, since they are
part of the job and are generally shared equally among the
deputies assigned to road patrol. Inasmuch as there is
absolutely no support for such an incentive among the
comparators, it appears that the hardships of working nights is
considered an aspect of the job which is built into the existing
valuation of the job for Eastern Washington deputy sheriffs.
ARTICLE XV - DISCIPLINE AND DISCHARGE
The Association has proposed two changes to Article XV.
First, it proposes to add the following sentence to the end of
Article XV:
Employees may only be disciplined for
just cause.
The 1999-2001 contract contains no "just cause" provision.
Second, it proposes to modify that contract by including the
following sentence:
Information in the employee's personnel file will be
made available to an authorized Association
representative with the permission of the employee.
This change will remove the restriction in the 199-2001 contract
which limits the Association's access to personnel files only to
situations involving a termination.
Before and during the hearing in this matter, the County
opposed these changes and offered its own proposal to amend
Article XV. However, in its post hearing brief, the County
stated that it was withdrawing its proposal and agreeing to the
Association's proposal.
Recognizing the agreement of the parties regarding Article
XV, it shall be awarded that Article XV be modified to include
language establishing the requirements of just cause for
discipline, and access by Association representatives to
personnel files with the permission of the employee.
ARTICLE XVI - GRIEVANCE PROCEDURE
The 1999-2002 contract requires that a grievance be raised
with the supervisor within five working days of its occurrence,
and then submitted in writing within five working days of the
informal discussion with the supervisor. The department head
than has five working days from receipt of the written grievance
to provide a written response. In each case where there is a
five working day limit, the Association proposes to raise the
limit to 15 working days. The County proposes to raise the
limit, in each case, to 10 working days. The Association
further proposes to amend Step 4. Step 4 currently provides that
the decision of the Board of County Commissioners would be the
final step in the grievance procedure. The Association proposes
that Article XVI, Step 4 read as follows:
If the grievance is not resolved at Step 3, the
Association may within fifteen (15) working days of
receipt of the Mediator's non-binding opinion, submit
the grievance to binding arbitration. The
Association shall notify the County of its decision
to arbitrate the grievance in writing and shall
request a list of nine (9) arbitrators from the
Public Employment Relations Commission. The parties
shall select an arbitrator by alternative striking
with the order of striking determined by lot. The
arbitrator shall set a date for hearing the grievance
and shall render a written decision within thirty
days of the conclusion of the hearing. The decision
of the arbitrator shall be final and binding upon the
parties, and the parties shall split the arbitrator's
fee and costs fifty-fifty.
The County opposes any change to Step 4.
The Association argues that all other comparable
jurisdictions allow grievance arbitration. In fact, Douglas,
Grant, Franklin, Kittitas, and Whitman Counties do provide for
grievance arbitration. Franklin and Whitman Counties have a 10
calendar day deadline for submitting grievances, Douglas County
has a 20 calendar day deadline, and Grant and Kittitas each have
30 calendar day deadlines. The Association relies on the
testimony of Deputy Cooper to support its argument that there
needs to be a neutral third party adjudication of unresolved
grievances, rather than giving the Board of Commissioners final
say. Deputy Cooper testified that the Association encourages its
members not to pursue grievances because it does not believe that
the County Commissioners are neutral. Deputy Cooper testified
that he would not expect the Commissioners to overrule the
Sheriff or otherwise take a position which would adversely affect
the County's finances.
The County argues that it does not see the necessity of
adopting an arbitration provision because few, if any, grievances
have been filed in the past and employees may take appropriate
actions to the Civil Service Commission. Sheriff Humphreys
testified that while employees have come to him directly to
resolve problems, no formal grievances have been filed in the
past five years. No evidence was presented during the hearing
with regard to the availability of a Civil Service Commission to
resolve disputes.
It shall be ordered that the time limits for filing and
processing a grievance contained in Steps 1 and 2 of Article XVI
shall be raised from five working days to ten working days.
These changes bring the parties' time limits closer to the
practice of the comparable jurisdictions. It shall also be
ordered that Article XVI, Step 4 be modified in the manner
proposed by the Association. The ordered change will remove the
Board of Commissioners as the final step in the grievance
procedure. A mutually selected arbitrator would provide a
professional neutral adjudicator in order to provide a fair and
unbiased decision regarding any contract dispute. The
availability of such a neutral arbitrator furthers the public
policy described in RCW 41.56.430 to avoid strikes by uniformed
personnel by providing "an effective and adequate alternative
means of settling disputes." The Board cannot be viewed as a
neutral body. Rather, as the Association points out, the Board
may be perceived to have a bias when reviewing decisions made by
County management and which affect the County's finances.
Moreover, arbitration of unresolved grievances is the prevailing
practice among all of the comparable departments.
ARTICLE XVLL - ASSOCIATION BUSINESS
The Association proposes that the following new sections be
added to Article XVII:
17.3 Association officers may investigate and
adjust grievances during working hours without
loss of pay so long as such activity does not
interfere with departmental operations.
17.4 Association officers may attend negotiations
without loss of pay if
negotiations occur
during their normal
working hours.
Negotiations includes
both actual and
reasonable preparation time.
17.5 The County will not incur overtime liability
as the result of section 17.4 and 17.5.
The Association argues that these proposals are supported by
reference to the practice of the comparable agencies and are
needed to secure essential Association functions aimed at
resolving disputes. Before and at hearing, the County opposed
any changes to Article XVII. In its brief, the County changed
its position to accept all of the Association's proposed
additions to Article XVII with the caveat that no more than two
Association officers may attend negotiations without loss of pay.
The Association's proposed Sections 17.4, 17.5, and 17.6
shall be awarded, with the adjustment that Section 17.5 begin
with the word 'Two." The parties are generally in agreement
regarding these additions. The County's proposal to limit to two
the number of Association negotiators who remain on paid status
appears to be a reasonable and fair clarification of the
Association's proposal.
ARTICLE XX - EDUCATION INCENTIVE
Section 20.6 of the 1999-2001 contract reads:
Education Incentive Program Committee. The County
and the Association agree to designate a committee to
discuss establishment of an education incentive
program. The committee will consist of three
representatives appointed by the Sheriff and three
appointed by the Association. The committee will
meet no later than July 15, 2000 and no less than
once every 90 days thereafter. By March 1, 2001, the
committee will issue its recommendations regarding
the possible creation of an education incentive
program, including: (a) degrees and course work
eligible for incentive pay; (b) incentive pay as a
percentage of salary, a fixed dollar amount, or
advancement on an existing salary schedule; (c)
timing of a transition into a new program; (d)
ongoing education or training requirements; (3)
effect of education incentive programs on recruitment
of personnel; and (f) the cost of a program. The
committee will not have the authority to negotiate or
make changes to this collective bargaining agreement.
The Association proposes to amend Section 20.6 to read:
Education Incentive. Employees possessing an
Associates Degree or its equivalent shall receive and
addition [sic] amount equal to three percent (3%) of
their regular rate of pay. Employees possessing a
BA/BS or its equivalent shall receive an amount equal
to five percent (5%) their regular rate of pay.
The Association argues that its proposal is justified because the
comparables have education pay, the prior interest arbitrator
recognized the importance of education pay and awarded a process
to start implementation, and an education committee which
included Management determined that an education incentive is
appropriate. The Association submits that a better educated
police force is an advantage to the entire community. The County
proposes to delete Section 20.6 entirely. The County urges
rejection of the Association's proposal because there is no
compelling evidence that Walla Walla is behind the comparators,
and the Association's proposal did not incorporate all of the
proposals of the education committee.
Section 20.6 was added to the 1999-2001 contract as a result
of Arbitrator Greer's interest arbitration award. Arbitrator
Greer found that adoption of an education incentive pay program
would have "likely benefits," inasmuch as police personnel with
higher education "are required to exercise judgment and
discretion on the job, sometimes with life and death
consequences," and "those with higher education may exercise that
judgment and discretion more soundly than those without that
background." Arbitrator Greer awarded "contract language that
creates a committee to consider the possibility of adopting an
education incentive program." Accordingly, an Education
Incentive Program Committee was formed, consisting of two
Management representatives, two Association representatives, and
a lieutenant from a nearby police department. That Committee
unanimously approved the following report:
REPORT OF EDUCATION INCENTIVE PROGRAM COMMITTEE
Members: Gary Bolster, Deputy, Walla Walla Co. Sheriff's Office
Tom Cooper, Deputy, Walla Walla Co. Sheriff's Office
Bob Dutton, Lieutenant, College Place Police Department
Gordon Heimbigner, Financial Analyst, Walla Walla County
Carole Lepiane, Undersheriff, Walla Walla Co. Sheriff's Office
The committee was charged with the responsibility of
researching and issuing NON-BINDING recommendations
regarding the possible creation of an education incentive
program. The findings of the committee, after several
meetings and significant research, are listed below.
A) Degrees and course work eligable for incentive pay
It was the consensus of the group that the purpose for an
educational incentive was to attract and retain employees
with a higher degree of education and knowledge that
would be beneficial to the field of law enforcement. The
committee recognized that any higher education would be
of some benefit as long as it consisted of general
studies or . . . [sic]
We recommend the following to make an employee eligible:
Associate of Arts degree in general studies
Associate of Science degree in Criminal Justice
AA/AS
equivalent number of hours in four-year college
Bachelor of Arts or Bachelor of Science degree from four-
year college in approved subject
The committee recommends that rather than listing
specific degrees to be eligible that each employee's
degree be reviewed by a committee of four persons (2
appointed by the sheriff and 2 by the association) to
determine if it is of sufficient benefit to the Sheriff's
Office to deserve the incentive.
B) Incentive pay as a percentage of salary, a fixed
dollar amount, or advancement on an existing salary
schedule
After reviewing the incentive pay offered by a number of
similar counties, we recommend that the incentive be
based on a percentage: 2% for two-year degree or
equivalent hours in four-year college, and 4% for a BA/BS
degree.
C) Timing of a transition into a new program
We recommend implementation beginning 01-01-03, provided
that an agreement is reached by bargaining units prior to
budget submission so that costs can be included in 2003
budget.
Kittitas and Whitman County provide no education incentive.
Douglas County provides a 2% base wage incentive for a two year
degree, a 4% incentive for a four year degree, and a 5% incentive
for a master's degree, where the degrees are in "job-related
studies as approved by the Sheriff." Beginning January 1, 2003,
Grant County has offered an education incentive of $20 per month
for an AA degree, $40 per month for a BA or BS degree, and $60
per month for a master's degree. The degree must have 'relevance
to law enforcement responsibilities as determined by the
Sheriff," to include such examples as a "criminal justice degree,
[a] business administration degree, [and an] education degree."
Franklin County provides for varying advancement on the wage
progression for certain educational attainment, including a two
year degree and a four year degree. It listed as qualifying
courses: police science, criminal justice, sociology, political
science, and psychology, plus other courses at the discretion of
the Sheriff.
The following new education incentive language shall be
awarded:
Effective January 1, 2004, employees completing
the following higher education levels from accredited
institutions in degree programs beneficial to the
field of law enforcement shall receive additional
compensation as follows:
AA/AS or equivalent number of hours from a four-year
college 2% of base rate
BA/BS 4% of base rate
A committee of four persons, two appointed by the
Sheriff and two by the Association, will determine if
the education is of sufficient benefit to the
Sheriff's Office to deserve the incentive. Deadlocks
shall be reasonably resolved by the Sheriff.
While the comparable jurisdictions are divided with regard to
providing an education incentive benefit, it is significant that
one additional comparator, Grant County, has newly adopted an
education incentive benefit since Arbitrator Greer determined
that such a benefit had "likely benefits" and ordered the
establishment of a committee to examine the subject. It is
reasonable to give particular significance to the resulting
jointly negotiated report recommending the adoption of an
education incentive benefit. The language awarded here is
intended, for the most part, to reflect the considered judgment
of the unanimous recommendation of the parties' labor-management
committee which recently considered the subject.
ARTICLE XXI - USE OF RESERVES
Article XXI of the 1999-2001 contract allows the Sheriff's
Office to use reserve officers in certain circumstances,
including "where they have been utilized previously." The last
sentence of Article XXI reads:
... If the Association believes that reserve offices
are being utilized inappropriately, it may meet with
the Sheriff or his designee to discuss such disputes
or disagreements and to attempt to resolve any
disputes or disagreements.
The Association proposes to replace this sentence with the
following:
If the Association believes that reserve officers are
being utilized inappropriately, it may open this
article to discuss such disputes or disagreements,
and to attempt to negotiate a resolution of any
disputes or disagreements. In addition, reserves
shall not be assigned to boat patrol unless the
County also assigns a full time represented deputy to
boat patrol.
The County proposes no change to this Article.
The Sheriff's Office operates a boat patrol in three river
parks within the County. These boat patrols regularly operate
only on weekends and holidays from late May through the Labor Day
weekend. The boat patrol consists of a boat manned by two
officers and two Sea-Doo personal watercraft. The See-Doos are a
relatively recent addition. The boat has been utilized for many
years. Years ago, deputies were assigned to operate the boat.
In recent years, the boat patrol has been manned by reserve
officers. These reserve officers have other regular employment,
and receive $14 per hour for their boat patrol work. One reserve
officer, Skip Wade, is a college professor who has worked summers
for the boat patrol for the past 11 years. The boat patrol is
funded by the Federal Corps of Engineers at a fixed rate per
officer of $38.12 per hour. Deputy Cooper testified that the
reserve officers are not as proficient as regular officers and he
is concerned that the boat patrol has not been issuing citations
for operating a boat under the influence, careless driving of
boats, and other safety related violations. The Association
presented a letter from a Corps of Engineers manager stating that
the County had issued only one boating citation during the year
and that seemed out of proportion. Sheriff Humphreys testified
that the boat patrol usually gives warnings before issuing
citations. He testified that he has never received any negative
comments from the public or the Corps of Engineers about the boat
patrol. Sheriff Humphreys testified that using reserve officers
on boat patrol during the summer is helpful in providing coverage
while regular deputies are taking summer vacations.
The Association argues that it should be given the
opportunity to bargain the use of reserves because it directly
affects staffing, shifts, training and vacation times, and, most
importantly, the Office's reputation. The Association contends
that the permanent assignment of reserves to the boat patrol is
an abuse. It asserts that the law enforcement activities of this
patrol are pathetic and inexcusable. The Association contends
that if scheduling vacation time is an issue, the County could
utilize the reserves for road patrol. Sheriff Humphreys
testified that he would be agreeable to this, but it is not that
simple since reserve officers are paid for boat patrol work, but
are unpaid when performing road patrol. The County contends that
there is no compelling reason to implement the Association's
proposal, that it would strain the limited resources available to
the County, and that the reserve officers are quite capable of
performing their boat patrol duties.
No change to Article XXI shall be ordered. No justification
was offered for inserting a provision allowing the Association to
"open this article" during the term of the contract. If the
Association has a problem with the wording of Article XXI, it
should propose changes during collective bargaining for a new
contract. It did just that regarding the County's use of
reserves for the boat patrol. It was not established that this
boat patrol proposal was justified by considerations of safety or
efficiency, There was just no convincing evidence that the
current practice of using reserve officers for boat patrol has
led to a demonstrable problem for the public, that it was unfair
to the deputies, or that it was otherwise called for by the
listed statutory criteria.
ARTICLE XXLV - DEPARTMENTAL INVESTIGATION PROCEDURES AND
EMPLOYEE RIGHTS
1. INTERVIEW OF WITNESSES
Section 24(a) concerns citizen complaints against an officer
which could lead to discipline or criminal charges. It provides:
(a) Allegations, if true, would make the
law enforcement officer guilty of a felony,
misdemeanor or subject the employee to Department
discipline, then the employee shall be advised of
the facts of such allegation as soon as reasonably
practical to do so after receipt of the complaint.
Such report shall include the name of the
complainant if the complaint is lodged by a non-
employee of the Sheriff's office and the nature of
the allegation. The officer shall not thereafter
contact the citizen or witnesses without prior
permission of the Sheriff.
The Association proposes, and the County opposes,
deletion of the last sentence of Section 24(a).
The Association contends that this language violates accused
officers' right to due process and their right to defend
themselves. In this regard, the Association relies on a
Washington Court of Appeals decision, Vancouver School District
v. SEIU, Local 92, PERC Decision 3779-XX (1992). In that case,
the Court held that the right to pursue grievances includes the
right to investigate and contact witnesses, but that a
reasonableness test must be applied. The Court concluded that it
was unreasonable to contact witnesses under the age of 12 without
first obtaining permission of the parents. The Association
maintains that while it may not be wise to have the accused
contact a witness or accuser alone, the Association can certainly
conduct an investigation which permits the officer or the officer
and a union representative together to contact witnesses or the
accuser, if the contact is reasonable.
The County relies on the testimony of Sheriff Humphreys that
he is greatly concerned about the Association's proposal.
Sheriff Humphreys testified that it would be naturally
intimidating for the alleged victim of an incident to be
interviewed by the perpetrator. The County asserts that the
intent of the contract language is not to prevent the employee's
representative from interviewing the witness, but rather to
prevent the accused officer from doing so without the permission
of the Sheriff. The County maintains that this has all to do
with the credibility of the Department and the appearance of
intimidation.
It shall be ordered that the last sentence of Section 24(a)
be amended to read:
The officer shall not thereafter contact the
complainant without prior permission of the Sheriff.
This change will strike a reasonable balance between the right of
the Grievant and the Association to conduct a reasonable
investigation of charges and the interests of the Sheriff's
Office and the public in avoiding intimidation of members of the
public who complain about police misbehavior. I agree with
Sheriff Humphreys that it may be unacceptably intimidating for a
member of the public complaining about the conduct of a law
enforcement officer to then be contacted by that officer. It is
reasonable that the Sheriff be alerted to the officer's desire to
make such contact and to decide whether it would be appropriate.
In any case, Association representatives would still be free to
contact the complainant. The amended language allows the
Grievant to aid his own defense by contacting witnesses other
than the complainant in a reasonable manner.
2. ASSOCIATION REPRESENTATION DURING INVESTIGATIVE INTERVIEW
Section 24(c) relates to formal interviews of officers who
are the subject of a Department investigation resulting from a
citizen complaint. The last sentence of Section 24(c) restricts
the participation of the employee's representative during such
formal interviews:
... The employee shall have the right to
retain an attorney of his/her own choosing and at
his/her own expense and such attorney and/or a
representative of the Association shall have the
right to be present during any formal questioning,
but he/she shall not participate except to advise the
employee of his Constitutional Rights.
The Association proposes to delete from this sentence the
limiting language: "but he/she shall not participate except to
advise the employee of his Constitutional Rights." The
Association argues that the language at issue prevents the
Association representative from fulfilling its role in
investigative interviews. The Association relies on a decision
of the Washington Public Employment Relations Commission which
held that it is an unfair labor practice for a police department
to prevent a union representative from participating in an
investigative interview of an officer alleged to have made an
improper entry into a residence. King County v. King County
Police Officer's Guild, Dec. 4299 (PECB, 1993). Citing NLRB v.
Weingarten, Inc., 420 U.S. 251 (1975) and NRRB v. Texaco, Inc.,
659 F.2d 124 (gth Cir. 1981)' the PERC examiner explained that
while the employer may at such investigative meetings, insist
that it is only interested in hearing the employee's own account
of the matter under investigation, still "the representative
should be able to take an active role in assisting the employee
to present the facts."
Sheriff Humphreys testified that he has no problem with an
Association representative counseling an employee during an
investigative interview, but he does not want that representative
to answer for the employee. The County contends that it has no
objection to a modification of Section 24(c), if the modification
incorporates the Sheriff's concerns. The County asserts that it
must maintain the ability to ask questions of the employee and
receive answers without interference, and without turning the
interview into a trial.
It shall be awarded that the disputed language shall be
deleted from Section 24(c), and shall be replaced with the
following:
and shall be permitted to participate to the extent
required by law.
The effect of this language will meet the concerns of both the
County and the Association, inasmuch as it will permit the active
participation of the Association representative, but also will
allow the County to insist that it is only interested in hearing
the employee's own account of the incident.
AWARD OF THE ARBITRATOR
It is the determination of your Arbitrator that the
Collective Bargaining Agreement between Walla Walla County and
the Walla Walla County Deputy Sheriff's Association shall include
the following:
I. Article V - Work Schedule
1. Shift Bidding - No change to Section 5.1
2. Call In Pay - Section 5.2.2 shall be modified to
increase the guaranteed minimum to three hours.
3. Court Time - Section 5.2.4 shall be modified to
increase the guaranteed minimum to three hours.
4. Compensatory Time - Section 5.3 shall be modified
by deleting the next to last sentence.
5. Training Time - No change to Section 5.5
II. Article VIII - Sick Leave
1. Buy Back - a) No change to Section 8.2
b) No new Section 8.7
2. Family Days - Section 8.4 shall be modified by
deleting the phrase, ",not to exceed three (3)
days per year,".
3. Doctor's Verification of Illness - Add:
8.5 A doctor's certificate of illness shall, at
the Employer's timely request, be submitted by the
employee for an absence of three days or more, or
whenever abuse of sick leave is reasonably
suspected.
III. Article XIII - Health and Welfare
1. Group Insurance - No change to Section 13.1.
2. Life Insurance - No change to Section 13.3
IV. Article XIV - Wages
1. Base Wage Adjustments:
Effective January 1, 2002 - 2.3%
Effective January 1, 2003 - 2.0%
Effective January 1, 2004 - 2.0 %
2. Deferred Compensation - No new Section 14.3
3. Shift Differential Pay - No new Section 14.4
V. Article XV = Discipline and Discharge
1. Delete the limiting phrase, "In case of a
termination following such warning," from the
sentence regarding making information in the
employee's personnel available to an authorized
Association representative.
2. Add the following sentence:
Employees may only be disciplined for just cause.
VI. Article XVI - Grievance Procedure
1. Time Limits - Modify Steps 1 and 2 to increase the
time limits for filing and processing a grievance
from five working days to ten working days.
2. Arbitration - Modify Step 4 to read:
If the grievance is not resolved at Step 3 , the
Association may within fifteen (15) working days
of receipt of the Mediator's non-binding opinion,
submit the grievance to binding arbitration. The
Association shall notify the County of its
decision to arbitrate the grievance in writing and
shall request a list of nine (9) arbitrators from
the Public Employment Relations Commission. The
parties shall select an arbitrator by alternative
striking with the order of striking determined by
lot. The arbitrator shall set a date for hearing
the grievance and shall render a written decision
within thirty days of the conclusion of the
hearing. The decision of the arbitrator shall be
final and binding upon the parties, and the
parties shall split the arbitrator's fee and costs
fifty-fifty.
VII. Article XVII - Association Business
Add the following new sections:
17.3 Association officers may investigate and adjust
grievances during working hours without loss of
pay so long as such activity does not interfere
with departmental operations.
17.4 Two Association officers may attend negotiations
without loss of pay if negotiations occur during
their normal working hours. Negotiations
includes both actual and reasonable preparation
time.
17.5 The County will not incur overtime liability as
the result of Sections 17.4 and 17.5.
VIII. Article XX - Education Incentive
Section 20.6 shall be modified to read:
Effective January 1, 2004, employees completing
the following higher education levels from accredited
institutions in degree programs beneficial to the
field of law enforcement shall receive additional
compensation as follows:
AA/AS or equivalent number
of hours from a four-year
college 2% of base rate
BA/BS 4% of base rate
A committee of four persons, two appointed by the
Sheriff and two by the Association, will determine if
the education is of sufficient benefit to the
Sheriff's Office to deserve the incentive. Deadlocks
shall be reasonably resolved by the Sheriff.
IX. Article XXI - Use of Reserves
No change to Article XXI
X. Article XXIV - Departmental Investigation Procedures
and Employee Rights
1. Interview of Witnesses - Amend the last sentence
of Section 24(a) to read:
The officer shall not thereafter contact the
complainant without prior permission of the
Sheriff.
2. Association Representation During Investigative
Interview
Delete from the last sentence of Section 24(c):
... but he/she shall not participate except to
advise the employee of his Constitutional Rights.
Replace the deleted language with:
... and shall be permitted to participate to the
extent required by law.
XI. Retroactivity - This Award shall be fully retroactive
to January 1, 2002 unless otherwise indicated herein.
Sammamish, Washington
July 28, 2003 /s/ Alan R. Krebs
Alan R. Krebs, Arbitrator
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.