|In the matter of the Interest Arbitration Between JACKSON COUNTY SHERIFF’S EMPLOYEE ASSOCIATION AND JACKSON COUNTY, OREGON. IA-02-06.
Jackson County, hereafter "the county" and the Jackson County Sheriff’s Employee Association hereafter "the association" are parties to a collective bargaining agreement, which expired June 30, 2005. When the parties were unable to reach agreement on a successor agreement, the matter came before Arbitrator Jerry Hetrick pursuant to ORS 243.746 and its administrative rules.
A hearing was held in Medford, Oregon on June 29 & June 30, 2006. The parties stipulated that the matter is properly before this Arbitrator for resolution. At the hearing the parties had full opportunity to make opening statements, present, examine and cross-examine witnesses, introduce documents/exhibits and make arguments in support of their positions. Both parties elected to submit closing argument in post hearing briefs by August 14, 2006 and were timely received by the arbitrator. The record was then closed.
Jackson County is the southern most county in Western Oregon and boarders California. The county is centrally located between Portland and San Francisco. Jackson County has approximately 2800 square miles with an estimated 2005 population of 195,515 making Jackson County the sixth largest county in Oregon. Approximately 68% of the population lives in eleven incorporated cities. 52% of the County is owned by the Federal Government. The government and health care are the largest single employers.
Medford is the county seat and population center. A three person Board of County Commissioners governs the County. A County Administrator, appointed by the Commissioners oversees the county operations. One such county operation is the Sheriff’s Department, which provides criminal patrol & investigation, corrections, joint drug enforcement, records, search and rescue & marine services. Currently the Department consists of 132 employees covered by this collective bargaining agreement.
The County & Association exchanged "last best offers" (LBO) proposals on June 15, 2006. Neither the County nor Association modified their LBO within the twenty- four-hour grace period.1 Both parties offer is based on a three-year agreement effective July 1, 2005 through June 30, 2008 and retains all current language unless modified by tentative agreements.
1 Despite raising argument that the County & Association had not previously discussed certain proposals, neither party raised timely objections following receipt of the other’s LBO.
STATEMENT OF THE ISSUE
Which Last Best Offer should be selected?
ASSOCIATION’S LAST BEST OFFER
Current contract language plus all tentative agreements
Article 3-work week
The "workweek" starts on Monday and ends the following Sunday. The workweek shall consist of five (5) consecutive workdays followed by two (2) consecutive days off. The Sheriff also may, with the agreement of the Association assign employees to an alternative work week, consisting of four (4) consecutive workdays, followed by three (3) consecutive days off, as provided in Section 3.3 below.
3.3 Workweek Adjustments
Based upon the operating needs of the department, the Sheriff may assign employees to a shift consisting of four (4) ten (10) hour days an alternative shift configuration. Such shift changes shall be posted (10) days in advance consistent with the provisions of the agreement. If the department adopts a ten (10) hour schedule, an alternative schedule, it will negotiate the impact of such with the Association. Institution or discontinuance of a particular shift pattern will be at the discretion of the Sheriff. In such event no less than a ten (10) day notice will be given and an opportunity to bargain concerning the impact of the change will be afforded to the Association prior to implementation of such change.
5.2. Minimum Vacation Use
To minimize the difficulty of scheduling vacations, the department encourages employees to take vacation at one time but the employee may take vacation in more than one period and as little as one (1) day fifteen (15) minutes at a time, subject to personnel requirements and established seniority policies. Employees who reach maximum accrual limits may take vacations in increments as little as one (1) hour to ensure no vacation time is lost. Utilization of time for this purpose is not an exercise of seniority rights.
Article 8-Health & Dental Insurance
8.1 (a). The County shall make the following amounts available for the life of the Agreement except as outlined in Section (b):
2004-2006 Effective July 1, 2005 the County shall contribute $843.25 month ($389.19)
per pay period per full time employee.
2006-2007 Effective July 1, 2006 the County shall contribute $950.00 month ($475.00) per pay period per full time employee.
2007-2008-Effective July 1, 2007 the County shall contribute $1,090 month ($545.00)per pay period per full time employee.
The County’s contribution for any part time regular employee benefits shall be prorated based on the employee’s hours paid during the paid period, and regular employees must be paid for forty (40) hours during a pay period to receive this benefit.
Article 16 Wages
JULY 1, 2005 SALARY RANGES AND WAGES FOR ALL POSITIONS SHALL BE INCREASED BY THREE AND ONE HALF (3.5%). THE SALARY RANGES AND WAGES FOR ALL CORRECTIONS DEPUTIES SHALL BE INCREASED BY AN ADDITIONAL ONE QUARTER PERCENT (.25%) ALL NON-SWORN EMPLOYEE’S SALARY RANGES & WAGES SHALL BE INCREASED BY AN ADDITIONAL ONE (1%) PERCENT.
JULY 1, 2005 ALL EMPLOYEES IN THE INVESTIGATION DIVISION (EG
DETECTIVES) SHALL RECEIVE AN ADDITIONAL FIVE (5%) PERCENT AS AN INCENTIVE PAY.
JULY 1, 2006 & 2007
THE SALARY RANGES FOR ALL BARGAINING UNIT MEMBERS WILL BE INCREASED BY AN AMOUNT EQUAL TO THE PERCENTAGE CHANGE IN THE ANNUAL CPI-W ALL US CITIES INDEX, WITH A MINIMUM OF THREE (3%) PERCENT. IN ADDITION, THE SALARY RANGES AND WAGE FOR ALL CORRECTIONS DEPUTIES SHALL BE INCREASED BY AN ADDITIONAL ONE QUARTER PERCENT (.25%) ON JULY 1, 2006 AND JULY 1, 2007.
16.8 (New) Any employee serving as a dog handler for the County shall receive a premium pay of three and one-half hours of overtime per work week added to their salary.
Article 18-TERM OF AGREEMENT
18.1 This agreement shall be effective from July 1, 2005 through June 30, 2008.
Current contract language plus tentative agreements.
Article VI-Sick Leave
Employees who are absent as a result of an injury/illness covered by Worker’s Compensation may use sick leave to supplement Worker’s Compensation payments for any day or part of a day the employee receives time loss payments, provided the time loss and sick leave shall not exceed one hundred (100%) of an employee’s regular net (after tax) take home pay. Assessments to sick leave shall be made as follows:
Employees assigned to less than 10 hours per day 1 Hour
Employees assigned to 10 hours or more per day 1.25 Hours
After sick leave has been exhausted, employees may use any other paid leave to supplement Worker’s Compensation. Use of sick leave will provide regular benefits based on the employee’s regular work schedule.
New Any employee who is injured on duty and requires immediate medical attention, as determined by management, shall be permitted to do so without loss of pay or benefits up to the end of the shift on the date of injury. The County will apply sick time for all other Worker’s Compensation related medical care which occur on duty, The County will not pay for time for any medical appointments which occur off duty. Employees will make every effort to schedule medical appointments on off duty hours.
Article VIII-Fringe Benefits Covered by Insurance Contracts
8.1 (a). Health & Dental Insurance. The County shall make the following amounts available for the life of the Agreement except as outlined in Section (b):
2005-2006 $843.25/month: $389.19 per pay period per full time employee.
2006-2007 $910.00/month: $420.00 per pay period per full time employee.
2007-2008 $983.00/month: $453.69 per pay period per full time employee.
The County’s contribution for any part time regular employee shall be prorated based on the employee’s hours paid during the pay period, and regular employees must be paid forty (40) hours during a pay period to receive this benefit.
Effective July 1, 2005, salary ranges for all positions, except Record Clerks, Criminal Data Technicians, and Search and Rescue Assistants will be increased by two and six-tenths percent (2.6%).
Effective July 1, 2005 the salary range for Record Clerks, Criminal Data Technicians, and Search and Rescue Assistants will be increased by three and six-tenths percent (3.6%).
Effective July 1, 2006, the salary ranges for all bargaining unit positions will be increased by the percentage change in the CPI-W (All US Cities) index annual average from 2004-2005, with a minimum of two percent (2%) and a maximum of four and five-tenths percent (4.5%).
Effective July 1, 2007 the salary ranges for all bargaining unit positions will be increased by the percentage change in the CPI-W (All US Cities) index annual average form 2005-2006, with a minimum of two percent (2%) and a maximum of four and five-tenths percent (4.5%).
Salary adjustments will maintain five percent (5%) between steps. The employer proposal deletes a requirement to provide meals for the corrections deputies and records clerks.
New- Dog master/Handler. Dog master and Dog Handler canine training activities shall be conducted on duty. Dog masters and Dog Handlers accept and may withdraw from the assignment voluntarily. Acceptance of the assignment is based on a willingness to care for the animal off duty. Employees who serve as Dog masters or Dog Handlers shall receive a pay differential of five percent of their base salary while serving in that capacity. The parties intend to compensate for the off duty care, feeding, and grooming at the overtime rate computes based on the FLSA or Oregon minimum wage (whichever is greater). The five percent (5%) differential compensates for approximately 45 minutes per day. The parties agree that no more than 30 minutes per day is required per day is required for off duty care of the animal. This agreement is based in part upon the Letter Ruling of September 25, 1985 of the Deputy Administrator, Wage and Hour Division, United States Department of Labor. The parties agree that commuting to work with the dog does not constitute "hours of work" solely because the dog is in the vehicle.
Dog masters and Dog Handlers shall not be entitled to a call back premium when duty concerns emergency care of their animal. Such time shall be treated as overtime.
Article XVIII-TERM OF AGREEMENT
18.1 This agreement will be effective from the first day of the payroll period following contract ratification by both parties through June 30,2008 with wage changes effective as described in Article 16.1 and insurance as described in Article 8 retroactive to July 1, 2005 in accordance with the terms of those articles.
Binding interest arbitration in Oregon is governed by the factor set forth in ORS 243.746 (d):
Where there is no agreement between the parties or where there is an agreement but the parties have begun negotiations or discussions looking into a new agreement or amendment of the existing agreement, unresolved mandatory subjects submitted to the arbitrator in the parties last best offer package shall be decided by the arbitrator. Arbitrators shall base their findings and opinions on these criteria giving first priority to paragraph (a) of this subsection and secondary priority to subsections (b) to (h) of this subsection as follows:
(a) The interest and welfare of the public.
(b) The reasonable financial ability of the unit of government to meet the costs of the
Proposed contract giving due consideration and weight to the other services, provided by, and other priorities of, the unit of government as determined by the governing body. A reasonable operating reserve against future contingencies, which does not include funds in contemplation of settlement of the labor dispute, shall not be considered as available toward a settlement.
(c) The ability of the unit of government to attract and retain qualified personnel at the Wage and benefit levels provided.
(d) The overall compensation presently received by the employees, including direct
Wage compensation, vacations, holidays and other paid excused time, pensions, insurance, benefits, and all other direct or indirect monetary benefits received.
(e) Comparisons of the overall compensation of other employees performing similar
Services with the same or other employees in comparable communities. As used in this subsection, "comparable" is limited to communities of the same or nearest
Population range within Oregon.
(f) The CPI-All Cities Index, commonly known as the cost of living.
(g). The stipulations of the parties.
(h) Such other factors, consistent with paragraphs (a) through (g) of this subsection as are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. However, the arbitrator shall not use such other factors, if in the judgment of the arbitrator, the factors in subsection (a) to (g) of this section provide sufficient evidence for an award.
DISCUSSION & ANALYSIS
The statute requires the concept of the interest & welfare of the public be given first priority by the arbitrator in evaluation each last best offer. That concept was not defined by statute. Arbitrator Snow, Portland Police Association and City of Portland (Snow 2003) summed the concept as: "Use of the public interest standard as the first priority requires the arbitrator to balance all relevant factors. The legislature instructs an interest arbitrator to consider a balanced process to evaluate relevant statutory criteria. An interest arbitrator must determine whether one last best offer is guided by more reasonable consideration than the other."
"In addition to the above consideration another aspect of the process is factoring in the fact that while interest arbitrations are important and have long reaching impacts they are even more important when dealing with law enforcement personnel who have a unique relationship with the community, which they serve. It sets them apart from all others. Much more is expected of them than public employees, in, for example, the human resources department. They are required to perform at a higher level of efficiency and integrity and for that they should be rewarded accordingly. An effective and appropriately compensated police force is essential to the safety of the community in which they serve. This applies not only to citizens of the city but those who visit the city."
The most frequently used process to get at what is in the interest and welfare of the public
Was framed by Arbitrator Lankford: "Before the interest and welfare of the public principle can be meaningfully discussed, examining comparability, ability to pay, recruitment, and CPI etc needs to occur" Local #2406 and City of North Bend. (Lankford 1999).
Arbitrator Lang applied this methodology in interest arbitration between these parties in the 2000 award stating, "Although the decision must ultimately turn on which of the two final packages better serves the public, this issue cannot be decided without full consideration of the statutory secondary criteria." "Each LBO will be examined
By the secondary criteria before judging whether their adoption is in the interest and welfare of the public."2 In short, the interest and welfare of the public cannot be determined in a vacuum.
2 Association Exhibit A32.
REASONABLE ABILITY TO PAY
Oregon Statute 243.746(4)(b) requires the Arbitrator to consider the reasonable financial ability of the county to pay for the proposed labor contract. The reasonable financial ability test is the ability to meet the costs of the proposed contract by giving due consideration and weight to other services, provided by, and other priorities of the unit of government as determined by the governing body. A reasonable operating reserve against future contingencies, which does not include funds in contemplation of settlement of the labor dispute, shall not be considered as available towards a settlement.
The legislature has directed Arbitrators not to look at just the absolute dollar amounts necessary to provide for the proposed contract. It directs attention to the ability of the county to pay for its labor contracts in relationship to public projects and needs considered either necessary or desirable by its governing body. Public officials will always have to choose between priorities for pubic funds. Jackson County has been preparing for the day when O & C funds may not be available by establishing a "Rainy Day Fund". That fund has typically been funded by contributions from one-time sources of revenue such as land sales and currently stands at approximately $23,971,246. The Association agrees that the County has been prudent with its finances. County Commissioner Susan Slack testified that the county has built the fund both for the general fund and road fund, which has been designed to provide reduced services for two years after O & C revenues are lost. Roughly $17 million of the $24 million rainy day fund is committed to expenditures for 2007-08. According to Slack, if the county spends conservatively the fund could last for two years with modest but not brutal reductions in services such as library and criminal services. In response to the Arbitrator’s question regarding impact on the public, Slack stated the county could see maybe one less patrol and maybe one less nurse in communicable disease but certainly citizens would see less services. Slack acknowledged the political reality of the loss would either take away programs or find another source of revenue. Slack stated the rainy day fund was never intended to cover labor agreements, which must come from a sustainable ongoing fund. In efforts to obtain a source of on going funds, the County is seeking voter approval for a permanent tax increase for the library, sheriff patrol or both. County Exhibit 27 indicates the County has met with limited success with ballot measures designed to raise taxes
In no event would funds for the Association’s LBO come from the Rainy Day fund.
Slack acknowledged that if the Association’s proposal is mandated, funds are available. However the difference would have to come out of either the Sheriff’s budget or another Department’s general fund. The least costly Association proposal would require a restructuring of established priorities and the Sheriff’s department is the largest of non- dedicated funds at roughly 20 million dollars out of 44 million dollars or approximately 47%. Retention of current service levels without renewal of O & C replacement funds requires additional taxes.
The County’s analysis of the Association’s LBO places the difference between the two proposals at $700,563. The Association places the difference between $117, 200.74 and $173,288.74 depending on the third year health care assumptions. The differences are essentially in the first year wage increases and adjustments, the second year wage increase due to a higher starting base for year two plus year two wage adjustments and the third year wage increase due to a higher starting base for year three plus wage adjustments and health care assumptions regarding the cap. The first year differences are essentially the wage and adjustments as follows:
ASSOCIATION COUNTY DIFFERENCE
WAGE 279,960.70 207,907.81
SWORN 19,186.71 14,964.50
TOTAL WAGE 326,862.96 222,872.31 103,999.65
ROLL-UP 40,976.80 29,652.39 11,324.41
The July 1, 2006 and July 1, 2007 wage increases were to be based on the percentage change of the CPI-W(All Cities Index). Jackson County proposed a minimum increase of two (2) percent with a maximum of four and five-tenths (4.5%) percent increase. The Association proposes a minimum increase of three (3) percent with a maximum of five (5%) percent. The Association proposal raises both the minimum and maximum potential wage increases. The difference is one percent at the minimum and five-tenths at the maximum. The July CPI-W is a known and falls within the maximum limits set by the County’s proposal as well as the Association’s.3 The health care premiums have been established at $908/month, within the cap proposed by Jackson County and substantially below that sought by the Association.
3 Association estimated the CPI-W at 3.9% -Exhibit 7
The difference, then for Year 2, by the Arbitrator’s calculation, would be:
ASSOCIATION COUNTY DIFFERENCE
WAGE $317,615.38 $311,904.38 $5,711.00
ADJUST 8,988.88 8,988.88
Only the third yearof the proposed agreement remains an unknown. By the Arbitrator’s calculations, the differences are:
ASSOCIATION COUNTY DIFFERENCE
WAGE $366,651.83 $359,715.41 $6,936.72
ADJUST 9,325.96 9,325.96
HEALTH CARE 185,736.00 129,648.00 56,088.00
The total three-year difference, as calculated by the Arbitrator, ($115,315.06-$14,699.88, $72,350.68) of $202,365.62 exceeds the County’s minimum cost of $2,138,010.28 by .946%and exceeds its maximum cost of $2,368,597.08 by .854%,falling within the County’s reasonable ability to meet.4 Time not negotiations has narrowed the difference.
4 Employer Exhibit E13.
This is the second occasion the parties have utilized interest arbitration. As in this hearing, the parties were in disagreement on comparable communities. The County argued that based on an accepted plus/minus 50% population threshold, Deschutes, Linn, and Douglas Counties should be considered comparables. The Association argued these were all smaller having at least 33% less population and sought to provide a balanced view by adding Clackamas, Lane, and Marion Counties, all of which exceeded the 50% threshold. Arbitrator Lang indicated, "After careful consideration (he) was not inclined to stretch the 50% plus/minus to encompass Josephine, Benton, Yamhill, Clackamas, Lane, or Marion counties. Specifically one of the difficulties seen with Marion County, the seat of the state’s capitol, is that it travels in the same community as the five largest counties. This would distort the comparisons here. Lane reluctantly concluded the three counties within the same geographic area, each with a large population center, were sufficiently comparable for his purpose. Because Jackson County is substantially larger than its comparators, its public is entitled to expect a competent police force that is better than average, and the highly skilled employees therefore have a right to a corresponding expectation as to economics."5
5 Association Exhibit A-32
In bargaining for a renewal agreement, the County has developed its economic comparisons based on Arbitrator Lang’s award. The Association has developed its comparables examining three counties with a higher population, Clackamas, Marion, & Lane and the three counties, Deschutes, Linn, and Douglas with a smaller population. It argues these smaller counties have fallen further behind in terms of its population difference and are now 47-49% smaller than Jackson County vs 33% in 2000. It notes Douglas County is economically distressed and has the highest unemployment rate in the state. As it argued before Arbitrator Lang, these smaller counties skew the comparables and argues the Oregon Statute is to be liberally, not narrowly construed.
I concur with Arbitrator Lang’s judgment regarding the exclusion of Marion County for the same reason. It travels in the same circle as the five largest counties and particularly influenced by their larger cities. The arbitrator notes that both Linn and Deschutes Counties utilize Jackson County in determining their Comparables6. While noting that Douglas County is a distressed county with high unemployment, Jackson County’s unemployment rate of 7% does not draw a picture of a robust economy. Additionally several of its population centers are likewise distressed cities. Moreover, geographically, Marion and Clackamas Counties are approximately 225 miles from Medford while Lane is at least one hundred. Geographic proximity seems an appropriate criterion due to the recruiting market, rural nature of Jackson County vs Clackamas and Marion Counties, and the probability that the Sheriff Department’s workload is more closely comparable to Deschutes, Douglas, and Linn Counties than Marion and Clackamas Counties. In doing so the arbitrator relies on the advice of Arbitrator Lehleitner: "I see nothing in the statutory language expressly stating or even implying that an arbitrator cannot limit his/her comparisons to departments within the same geographic area. Indeed if sufficient comparable departments within the same population range exist in the same geographic area, I believe such departments are the most important comparables."(Arbitrator Lehleitner, Winston-Dillard Fire District, IA-07-95). For these reasons I am inclined not to disturb the comparables utilized in the Lang Arbitration Award, particularly if the county has followed Lang’s admonishment to compensate its employees better than its smaller comparators. Arbitrator Lang, while reluctantly accepting the three smaller counties as comparables, stated, "Because Jackson County is the largest employer of the comparables, the Arbitrator would expect that the community would desire their law enforcement personnel to be paid at a higher rate."7
6 See Arbitration Awards-IA-06-04(Linn Co) & IA-18-95 (Deschutes Co)
7 Lang, Page 20
The parties also differ in their methodology for the analysis of benchmarks of the comparables. The county makes a comparison of the "total compensation" of the Criminal Deputy at the bottom step and top step at 12 years service. The Association makes as its comparison, twelve benchmark comparisons of total compensation with base rates for the Patrol/Criminal Deputy at five, ten, fifteen, and twenty years service plus certifications.8 Using this approach the Association argues the Deputies are on an average 2.8% and 5.9% behind comparables & thus favors their proposals. It argues in the alternative, if the arbitrator were to select the comparables utilized by Arbitrator Lang and rank the comparables, Jackson County is 1.4% behind Deschutes County for patrol deputies and 4.8% behind the corrections deputies.9 Either of its methodologies supports its wage proposal says the Association.
8 Association argues this methodology is use by Association of Washington Cities and Counties
9 Association Exhibits A-34-35.
The stated purposes of comparables and market place analysis are to determine how well the County stacks up with statutory criteria. Examining comparables of Linn, Douglas, and Deschutes counties indicates the Association has compared Jackson County’s 2004 Deputy compensationwith the comparables 2005 compensation for Deputies. At five years of service, Jackson County Deputies exceed the average and ranks above Linn, Douglas, and Deschutes. Jackson County’s ranking is unchanged at the adjusted base even using the 2004 Jackson County rates.
Jackson County’s ranking remains unchanged for base and adjusted base rates at ten, fifteen and twenty years of service before the County’s 2005 LBO is considered. When Deputy compensation with an AA Interim Certificate ranking is compared, the County, at either the 2004 or 2005 base, ranks about Deschutes, Douglas and Linn Counties.
That ranking changeswhen comparing adjusted base rates. Jackson County’s ranking for Deputies at the five, ten, fifteen, and twenty year of service employee remains above Deschutes, Douglas, and Linn and will fall behind that of Deschutes for twenty yearemployees even with the County’s 2005 LBO. The County’s position for Deputies with a BA/Advanced Certificate falls belowthe market average at the adjusted base and belowthat of Deschutes @ the five, ten, fifteen, and twenty years service bench mark, even factoring in the County’s 2005 LBO of 2.6%. Deschutes, at five years service, has an adjusted base compensation of $5462.15 vs $5378.8 or 1.6% above that of Jackson County.10
10 Association Exhibit A-34, Page 10.
Base @ 5 yrs Adjusted Base @5 yrs
Market Average $4,137.47 $4,752.91
Deschutes $3,930.18 $5,049.16
Jackson 11 $4,245.04 $5,153.54
11 Includes County’s 2005 LBO of 2.6%
Adjusted Base @10 yr. @ 15 yrs @ 20 yrs
Market Average $4,826.60 $4,925.58 $4,973.95
Deschutes $5,142.21 $5,235.26 $5,305.63
Jackson $5,202.83 $5,236.47 $5,284.45 – (.3%)
Deputy with Advanced Certificate
@ 5 yr @ 10 yr @15 yr @ 20 yr.
Market Average $5,010.92 $5,084.60 $5,183.58 $5,231.96
Deschutes $5,462.15 $5,555.19 $5,648.24 $5,718.62
Jackson $5,378.80 $5,427.81 $5,460.46 $5,509.44
Difference -(1.5%) - (2.3%) -(3.3%) - (3.66%)
Jail Deputies-Interim Certificate
@ 5 yr @10 yr @ 15 yr. @ 20 yr.
Market Average $4,736.19 $4,809.71 $4,908.53 $4,956.75
Deschutes $5,049.16 $5,142.21 $5,235.26 $5,305.63
Jackson $4,988.74 $5,036.16 $5,067.77 $5,115.19
Difference -(1.2%) -(2.06%) -(3.19%) - (3.59%)
Jail Deputies-Advanced Certificate
@ 5 yr @ 10 yr @ 15 yr @ 20 yr
Market Average $4,993.50 $5,067.02 $5,165.84 $5,214.06
Deschutes $5,462.15 $5,555.19 $5,648.24 $5,718.62
Jackson $5,206.97 $5,254.39 $5,286.00 $5,333.43
Difference -(4.67%) -(5.4%) -(6.41%) -(6.74%)
The County has made wage comparisons with its comparables at the bottom and top steps for entry and total compensation for the criminal deputy, corrections deputy, and records clerk based on its LBO.12 The County argues that it is above the average of its comparables at the bottom and top step in total compensation with its 2005 LBO increase for the criminal & corrections deputy and the records clerk.
12 Employer Exhibit 31-34
The following charts tell a different story when comparing Jackson and Deschutes in terms of total compensation.
Bottom Step-Entry Bottom Step-Total Compensation
Market $3,183 $3,514
Deschutes 3,396 3,831
Jackson 3,326 3,787
Difference -(2.06%) -(1.15%)
CRIMINAL DEPUTY-12 YEARS
Top Step Top Step-Total Compensation
Market $4,043 $5,085
Deschutes 4,333 5,555
Jackson 4,245 5,459
Difference -(2%) -(1.7%)
Bottom Step-Entry Bottom Step-Total Compensation
Market $3,168 $3,497
Deschutes 3,396 3,831
Jackson 3,221 3,667
Difference -(5.15%) -(4.23%)
CORRECTIONS DEPUTY-12 YEARS
Top Step Top Step-Total Compensation
Market $4,029 $5,068
Deschutes 4,333 5,555
Jackson 4,110 5,286
Difference. –(5.38%) -(4.84%)
Bottom Step-Entry Bottom Step-Total Compensation
Market $2,203 $2,398
Deschutes 2,255 2,532
Jackson 2,354 2,398
Difference +(4.2%) -(5.29%)
Top Step Top Step-Total Compensation
Market $2,798 $3,208
Deschutes 2,876 3,410
Jackson 2,864 3,349
Difference -(.4%) -(1.79%)
Bottom Step Bottom Step-Total Compensation
Market $3,294 $3,652
Deschutes 3,408 3,883
Jackson 3,326 3,873
Difference -(2.4%) -(.2%)
Top Step Top Step-Total Compensation
Market $4,182 $5,259
Deschutes 4,347 5,612
Jackson 4,245 5,546
Difference -(2.35%) -(1.18%)
The above charts reflect that while the County’s assertion that it pays above the market average for its comparables is correct, the County does not compare favorably with its largest but smaller comparable, Deschutes County for the Corrections Deputy, Criminal Deputy, and Records Clerk at either the bottom or top step and total compensation levels. That unfavorable comparison is addressed by the Association’s proposal for Corrections Deputies. Arbitrator Lang, it must be noted, accepted the Association’s proposed increases holding "Because Jackson County is the largest employer of the comparables, the Arbitrator would expect that the community would desire that their law enforcement personnel be paid at a higher rate."13
13 Lang Award, Page 20.
HEALTH INSURANCE CONTRIBUTIONS
Jackson County, as the Association notes, is unique among comparables and most public employers in that it does not purchase health insurance. The county bargains with the Association over the premium contributions required leaving the plan design and benefit level within the control of the Association. Association witness Bennett stated: the county provides the funding and the Association picks the plan design and contributes to the cost. The County notes that historically the Association has made good choices regarding plan design and cost control. Both parties agree the Association has managed a cost effective insurance plan. The County has traditionally bargained for a cap to its premium contributions. Association witness Bennett stated the parties have set caps in recognition of premiums that were reasonably anticipated. Over the past sixteen years the County’s premium has resulted in fully paid health insurance eleven of the sixteen years without exceeding the employers capped contribution level. Beginnings in 2000 employees have made premium contributions towards health care ranging from $8.90/month to $39.08/month.
The LBO’s reflect the differences between the parties to be in the amount of the cap and the effective dates of premium increases. The County proposes a cap that mirrors the cost to maintain the current benefit and plan design. The Association suggests a cap in excess of the anticipated costs and new language providing effective dates of changes as of July 1, 2006 and July 1, 2007. Both LBO proposals provide fully paid insurance in the first two years of the agreement. For 2005-2006 there is agreement on the proposed County contribution of $843.34, which results in no employee contributions. There the LBO’s differ:
Year 2 Year 3
County $910.00/mo $950.00/mo
Association $950.00/mo $1,090.00/mo
The difficulty with the Association’s LBO lies in the fact that the premium for 2006-2007 will increase to $908.00/month in October 2006 making by the Association’s admission the health care plan fully paid for by the County.14 As the County’s contribution covers the health care premium there does not seem to be an explanation for a proposed cap in excess of the anticipated October 2006 premium. The County’s proposed increase of 7.9% and 8.02% also more closely approximates the historical increases of 6.9%15 since the Association moved from the HMO.16 Additionally Deschutes employees contribute $35/month for health care, Douglas employees contribute $223 and Linn County employees contribute $73/month.17 The Association’s proposal insures that the county provides fully paid health care for the term of this agreement and raises the starting point for the subsequent agreement. It lessens the need for the Association to be prudent with cost control features. Implicit in the contract language is the possibility that there might be cost sharing for insurance premiums rather than a full cost assumption by the county. The employer’s LBO which pays the full premium the first year of the agreement and then raises the cap to mirror the group experience more closely represents maintenance of the status quo began in 1999.
14 Testimony of Loren Anderson for the Association places the rate at $909 per month.
15 Employer Exhibit 19A
16 Mercer’s Health Care Plan Survey shows declining HC Premiums and predicts a 6.7% increase for 2006
17 Employer Exhibit 34
Additionally, mathematically the Association’s proposal is susceptible to confusion on the part of the employee. That confusion lends itself to future disputes over the monthly employee costs as to the cap. In its post hearing brief the County points outs there are 26 pay periods in a year. The Association’s proposal for 2006 would require $950 per month and $475 per pay period. Based on a monthly contribution, the County’s annual cost is $950 x 12 or $11,400. Based on a per pay period the cost becomes $475 x 26 or $12,350, a difference of $950. The Association’s proposal for 2007 produces the same result: $1090 x 12 or $13,080 if based on a monthly calculation or if calculated on a per pay period basis, $545 x 26 or $$14,170. The monthly contribution using the per pay period calculation produces a $1,029.16 ($475 x 26 divided by 12 months) vs the $950 monthly cap. The potential exists for an employee to argue that the cap before requiring employee contributions is $1,029.16 rather than $950. The potential for disagreement, present with the Association’s proposal, argues against the Association’s proposal on health care.
Finally, there is the Association’s change in the health care plan renewal date of October 1st. Association witness Bennett testified that the employer contribution has typically changed July 1st based on premium changes suggested by Blue Cross. The Union’s proposed health care language adds new language to the contract-"Effective July 1, 2005", "Effective July 1, 2006" and "Effective July 1, 2007". Does the cap apply to any premium increase made the prior October? If so, if the plan costs go up in October which are in excess of the July 1 cap, is the employee required to contribute to the amount in excess of that cap? Could Blue Cross establish a premium in July that recovers any excess costs from October to July? While COBRA costs are borne by the employee, not the county, is there COBRA compliance issues if the plan benefit and rate are changed more than once per year?
If it is not in the best public interest to maintain contract language that leads to disputes and grievances, it most certainly is not in the public interest to incorporate contract language, especially where there can be a financial cost attached, into a new collective bargaining agreement that produces unknown results leading to a dispute over their application and interpretation.
Currently the county does not provide a premium for the five detectives assigned to the Investigative Division. Detectives have a specialty; carry pagers making them subject to call outs and work closely with the district attorney. Detectives have an annual training requirement regarding legal and narcotics issues. There is no separate job classification for detectives nor is it a promotion in the sense of the word. The Sheriff makes the assignments and detectives work with Patrol Officers. The only apparent difference is a $40 per month clothing allowance in contrast with uniformed personnel who are provided with uniforms provided by the County.
The Association proposes a five (5%) incentive pay. It argues that Douglas and Deschutes Counties, comparables argued for by the County, provides incentive pay.18 It notes that the Medford Police Department, Ashland Police Department and Central Point Police Departments provide incentive pay to detectives. The County argues Jackson County investigators earn a wage and total compensation above market. The County correctly notes its bottom wage is above the average of its comparables but is below that of Deschutes and marginally above that of Linn. The bottom step for investigators, with incentives is 6.06% above comparables. However total compensation is below that of Deschutes and influenced by employee insurance contributions made by Douglas, Deschutes and Linn county employees averaging $110/mo. Comparisons at the top step are slightly less than that at the bottom wage, 1.5%, and 5.46% when incentives are included but 3.29% when employee insurance contributions are backed out. While Jackson County is above the market for its investigators at the bottom and top steps, it is only marginally so and below its largest but smaller comparable for total compensation.
18 Association Exhibit A 16 See also E-34 which disagrees.
DOG HANDLER COMPENSATION
Jackson County established a K9 unit in mid contract in 2004. The compensation was established at a rate of one-half hour per day at the overtime rate or 3.5 hours per week at the overtime rate. In preparation for negotiations, the county surveyed comparable jurisdictions, Klamath County and Hillsboro, which have K9 units. Hillsboro has one of the oldest and largest K9 units in Oregon. Hillsboro & Klamath Counties are identical in compensation for its dog handlers.19. The Association seeks to maintain the status quo payment while the county proposes to reduce the K9 compensation. The annual compensation for Jackson County’s dog handler of $7437.88 well exceeds that of Hillsboro and Klamath counties. But it is the County who established that level without bargaining with the Association who now says "we are overpaying our dog handler." The County who made its bed now asks the arbitrator to change the sheets." Had the county done its homework when establishing the K9 compensation rate, its would have had a strong argument for maintaining status quo and the Association an uphill climb to support an increase, the shoe is now on the other foot. But it is the county who established that level without bargaining with the Association who now says we are overpaying our dog handler. The county who made its bed now asks the arbitrator to change the sheets, reduce admittedly one employee’s compensation, and do so because it did not do its homework and without advancing a quid pro quo, a change in circumstances or compelling need. The statutory criteria favors the Association relating to the Dog Handler compensation.
19 Employer Exhibit 50
CONTRACT LANGUAGE PROPOSALS
Both parties have made proposals for contract language changes. Where parties propose a change in contract language, the proposing party must show a compelling need, changed circumstances or offer a quid pro quo. The party must also demonstrate that it has no other alternative. The language proposed must address the specific need. The burden to establish the compelling need, changed circumstances or quid pro quo is on the Association for the proposed changes in the workweek and workweek schedule, and minimum vacation. The County has that burden for the workers compensation proposal.
ARTICLE III WORK WEEK AND WORKWEEK ADJUSTMENTS.
Normally an employer proposal, the Association has proposed altering Article 3 to allow for the adoption of alternative schedules at the discretion of the Sheriff and with concurrence of the Association. The Association’s proposal deletes references to four ten hour shifts and asserts with the use of alternative work schedules would allow the Sheriff and the Association an opportunity to implement a twelve hour schedule.20 It points out this is provides an opportunity for additional flexibility, a goal shared by the Sheriff.21 The record shows that the Sheriff and Association have attempted to work together on alternative schedules in the past. Their most recent effort being in early 2006 and are currently involved in bargaining on this issue.
20 Use of the word "alternative schedule would also encompass a 10 0r 12 hour schedule and impact bargaining.
21 Association Exhibit 53
The county has proposed no change in the workweek and workweek adjustments. While the Sheriff did not appear at the interest arbitration hearing, C.W.Smith, former Sheriff and current County Commissioner testified as the county’s objections to the change. The county argues that the Association’s proposals raise numerous issues. The county notes the bargaining history on work schedules is extensive and denotes the parties have bargained extensively for benefits associated with the 5-8 and 4-10 shifts as well as the impact and adjustments that are made in the contract when movement occurs between such shifts which allows the Sheriff to move employees with out bargaining on these or other issues. The county expresses a concern over what happens to 22 bargaining unit employees currently working a 4-10 schedule if the 4-10 language is deleted?
Commissioner Smith expressed the county’s concern over what it sees as imposing a compete waiver of its rights as a joint employer taking it completely out of the process in the design, approval, and implementation process regarding alternative work schedules. That concern is based on recent bargaining, which failed to address the FLSA 7(k) language, which has financial implications.22 As a waiver of bargaining rights is a permissive subject of bargaining, the county argues that it cannot be compelled by the arbitrator.
22 County Post Hearing Brief, Page 35
Evidence establishes that Deschutes, and Linn Counties, which the county uses as comparators as well as Marion County used by the Association, have contractual provisions regarding a 4-12 work schedule. Care should be exercised when dealing with operating provisions on the basis of comparator counties. Staffing levels, assignments, geographic size, responses, assistance to other jurisdictions differ between counties even those who compare favorably in population. The presence or absence of operating language in one agreement should not be the compelling basis for accepting or rejecting a proposed contract provision. It must be made on the basis whether or not it improves public service or reduces operating costs, leaves the employer in a better position to provide services to its citizens or adversely impacts the employer’s ability to deliver those services. Lt. Stark testimony indicates the proposal would not give the county any more bodies as the bottom line is 80 hours in a pay period. None of those arguments are present in the Association’s presentation at the hearing or articulated in its post hearing brief. The record shows that the parties have been engaged in mid term bargaining over the 4-12 schedule and have not reached agreement. The role of the interest arbitrator is to provide finality and certainty to the collective bargaining process and to develop a labor agreement that does not produce disputes over contract language that the arbitrator imposes. It is clear from the record there is no clear meeting of the minds and the incorporation of the Associations proposal would lead to future bargaining on not only the 4-12 work week but 4-10 work week as well which is already incorporated into the current agreement. The Association’s proposal insures bargaining would occur on an already settled issue, the 4-10 hour work week. The Association’s proposal has economic implications for the Commissioners who must provide the financial resources as well as well as operating implications for the Sheriff. The Association’s proposal does not take into consideration that the decision making process for the County is a political process and that the County is the ultimate employer and party responsible to the public. As the Association’s proposal does not bring finality to the bargaining process, it has not carried its burden of proving the necessity for change.
Currently employees may take vacation in increments of one day and may take vacations in one-hour increments to avoid losing accrued vacation time. The Association has proposed language that would reduce that increment to fifteen minutes. It supports its proposal on the basis that other county employees are permitted to do so.23 The County argues it has potential impact on jail staffing if used in great frequency. As Lt. Stark testified, on cross examination, the proposal would have minimal impact as discretion still allows the county not to allow a particular request based on operational needs. In summary, there has not been shown a compelling need for the change other than other county employees have it and we want it too. There has been no showing that the fifteen-minute increments allowed under holiday, compensatory time and the one-hour increment available under the current vacation article are insufficient. Under other factors the arbitrator may consider are internal comparables. Internal comparables may carry some weight in certain instances such as vacation scheduling or time off which has minimal effect on operational requirements. When this issue is evaluated in light of the total proposal, it has virtually no weight in the overall decision as to which LBO is in the interest and welfare of the public.
23 See E21. That exhibit does not identify whether it was a contractual agreement or done with consent of the supervisor based on operating requirements. No indication whether represented or non-represented employee weight doubtful.
The County’s proposal arises out of a long standing dispute involving whether the County is obligated to pay for time off duty attending medical appointments for injuries occurring while on duty. The County’s LBO would make off duty medical appointments for injuries occurring while on duty non compensable, require employees to make every effort to schedule medical appointments following return to work during off duty time and time spent attending medical appointments would be charged to and compensable as sick leave. The County requests affirmation with contract language what the County has done since August 2004 and County policy for other employees.
The Association argues the County proposes a substantial change in status quo and has historically paid for the employee’s time to attend such medical appointments without charges to employee’s sick time account. It charges the County with having made a unilateral change in policy without bargaining which has resulted in a series of grievances which are scheduled for arbitration. In the Association’s opinion, internal comparability should not be considered due to the nature of police work. It notes acceptance of the County’s proposal offers no quid pro quo and would be a windfall not in the interest and welfare of the public.
One of the more infrequent considerations used in interest arbitration is past practice. In the absence of contractual provisions a past practice may often be a benefit or working condition that the county has, through its supervisors, granted or allowed employees to enjoy. To find an established practice that binds both parties, the material facts must satisfy three standards: It must be unequivocal-granted or applied consistently, regularly, uniformly, and without break. It must be clearly enunciated-allowed to occur or acquiesced to over a reasonably long period of time and must be accepted and acted upon by both parties. A practice that satisfies these three standards may be said to have become a fixed and binding practice. Lt. Starke testified that injured employees began using the three hour call in provision and receiving pay. The pay practice was not consistent, according to Stark, and was in the Corrections but not the rest of the departments. Stark testified that the practice of paying started sometime around 1999-2000. While not paid the first occasion, Stark stated on his "next injury I was paid."
Subsequently the County issued its Administrative Policy regarding employee leaves on May 200424.
24 Employer Exhibit 51.
The Arbitrator agrees with the Union that this issue should not be decided by what the County does for other employees. Interest Arbitrators recognize there are differences between police/fire units and other employees. Police and fire units are far more subject to on the job injury than most county employees. It is in the public interest for medical treatments to occur rapidly and for a quick return to duty. It is in the interest and welfare of the public that medical treatment is obtained off duty rather than take time away from their responsibilities to protect and serve its public.
The interest and welfare of the public is also served by effectively managing the costs of such treatment. Assuming the cost of compensating employees for medical treatments when there is no lost time from work after the injured employee has returned from workers compensation leave is a benefit that should be obtained through collective bargaining not interest arbitration. Maintenance of the status quo, urged for by the Association, is not always in the interests and welfare of the public where it has not bargained for and has an associated cost.
Most compelling is the commonly accepted principle that when a party requests a change or give back or adjustment in status quo the party’s rationale should be based on whether a legitimate problem exists and whether the proposal effectively addresses only that problem. The Association makes the more persuasive argument on two counts. First, the County acknowledges there has not been an abuse nor have employees been disciplined for requesting call in pay for time spent obtaining off duty medical treatment. Secondly and more disturbing is the apparent agreement to resolve the issue in arbitration rather than interest arbitration.25 For these reasons, on this issue Association’s proposal for the status quo is more nearly in the interest and welfare of the public.
25 Association Exhibit 26
ABILITY TO ATTRACT AND RETAIN CRITERIA
The need to attract and retain a competent police force in competition with other jurisdictions and the private sector is of prime concern to the public. The level of pay must be high enough to attract and retain a police force and maintain a high level of morale and spirit within that police force as well as insuring there is no need for alternative employment. There is no showing that the County has either a recruitment or retention problem. Twenty-nine employees have been hired since January 2000 of which thirteen had prior work experience with police or sheriff units. Of the separations, seven left for other employment, one to the Medford police. In general there is insufficient showing that Jackson County Sheriff Department employees are leaving for Clackamas or Marion Counties for the current salary difference. These unit employees are not likely to leave more geographically distance employers in the more urban areas the Association would cite as comparables. This criteria slightly favors the County’s LBO.
COST OF LIVING
The County’s 2.6% wage increase and 3.6% wage increase for the first year of the agreement and its proposal for the second year fell within the CPI-W insuring that no loss of past gains occurs. Moreover the past two collective bargaining agreements have rather closely tracked estimates of future CPI-W, by the Association’s cost of living estimates(A-18). At best the CPI-W is a rough estimate of the increase in living costs, more so considering the geographic location of Jackson County. As the third year wage increase, based on the CPI-W, differs slightly, (.5%), and is estimated at falling within the lower CPI-W proposed by the County, the cost of living as a factor is essentially evenbetween the two LBO’s.
The County seeks support with evidence that the Association membership has received greater wage increases than other county employees and managers. Association employees would continue to do so under the County’s LBO. The Association offers the County’s assessed valuation is increasing. Neither data factors into a determination of which last best offer should be selected as the factors listed in (a) through (g) provide sufficient evidence for the award.
INTEREST AND WELFARE OF THE PUBLIC
Last Best Offer interest arbitration restricts arbitrators by statutorily requiring the selection of one party’s offer regardless of the merits contained in the offer of the other party. A key test in the public interest and welfare is that any factor used to evaluate an LBO must advance one of the purposes of the Oregon Legislature when it enacted its interest arbitration statute. A pivotal purpose of the collective bargaining legislation is to maintain the high morale of public safety employees as well as the efficient operation of government services. The statute does not define which of those purposes takes precedence. It is my opinion that the task of the arbitrator is not to raise the morale of Jackson County public employees. In fact I cannot establish whether it is either high or low compared to other sheriff units in Oregon. But it is not unreasonable to conclude that morale might be affected where smaller comparables selected by the County have a total compensation that exceeds that of a larger county such as Jackson County vs Deschutes.
While the interest and welfare of the public is to be given first priority, it is clear the other factors cannot be completely ignored simply because they are secondary.
Arbitrator Lang, in his award between these two parties, reviewed definitions of " the interest and welfare of the public" relied upon by other arbitrators. Lang’s review produces the following standards: Arbitrator Katrina Boedecker, City ofGrant Pass(June 1997) applied a test of "what is reasonable to the taxpayer" and "fair to the employee" standard. In City of Bend and Bend Police Officer’s Association (July 1998) ArbitratorJane Wilkinson concluded that "an award of a fair and competitive wage that allows the unit of government to spread its resources elsewhere in order to meet public needs" would serve as a standard. Arbitrator Sam Keltner, in City of Eugene and Eugene Police Employee’s Association (February 2000). Concluded "it is in the public interest that the employer have a good police force at a reasonable cost to the taxpayer. To get capable people highly able to protect the interests of the public, there is a cost relevant to the quality demanded". Arbitrator John Abernathy observed in City of Oregon City and Oregon City Firefighter’s Association (March 1999) that "quality service at the lowest cost is the community’s basic interest." Lang concluded that the interest and welfare of the public is closely tied to obtaining a quality law enforcement agency that the public has confidence in at a reasonable cost.26 As stability and consistency is valued in interest arbitration, Lang’s definition is preferred.
26 Arbitrator Lang, Jackson County Sheriff’s Association and Jackson County, Oregon (March 2000).-Employer Exhibit 21.
The interest and welfare of the public are not subject to economic measurements making it a matter of judgment essential on the factors set out in the secondary criteria. Interest arbitrators should be hesitant to substitute their "judgment " of how the county’s funds should be allocated unless the Association has demonstrated those factors more strongly favor its LBO and remains within the interest and welfare of the public. If I were not constrained by the Oregon Law concerning the last best offer provisions, neither package would be selected in its entirety. That is particularly so with the Association’s work week schedule and health care proposal for a second year premium increase in excess of what is expected for October 2006 and its third year premium increase of 14.7% in the face of falling health care premiums. In the final analysis these two proposals form an insufficient basis for rejecting the Association’s proposal as a whole. Whether the County will adopt a 4/12 work schedule is entirely speculative as is its cost impact. Additionally non-economic issues, especially those which may or may not be implemented, do not take precedence over the evaluation of the economic factors mandated for consideration. Likewise to reject the Association’s proposal on the basis of its higher cap of health care premiums seems unreasonable. First because it is highly unlikely because of declining health care premium percentage increases that the final year of the contract would produce a rise in health care premiums from The $908/month scheduled for October 2006 to increase to $1090 or over a twenty percent increase. The Arbitrator concludes that the County has the reasonable ability, per Administrator Slack, to meet the costs proposed by the Association which time and known numbers has lessened the cost differentials between the two LBO’s. The additional cost of the Association’s proposal is not entirely insignificant nor is it as massive as originally thought. From an examination of the record that the County’s Sheriff’s unit employees are compensated above the average of its comparables in wage rates, the Association has shown they are behind in total compensation, and especially behind Deschutes, the largest but smaller comparable.27 The adjustmentssought by the Association for the detectives, corrections deputies and non-sworn is supported by the evidence.28
27 Employer Exhibits 31-34
28 County Witness Lt. Larson testified he knew which classifications were sworn and non-sworn.
The arbitrator does not believe the County’s LBO is within the interest and welfare of the public when coupled with the comparability factor (d) and (e) requiring the use of total compensation rather than simply wage rates. Although the County has not experienced and probably would not experience a retention or turnover problem with its proposal, I do not believe that the arbitrator can ignore Arbitrator Lang’s opinion that "because Jackson County is the largest employer of the comparables, the Arbitrator would expect that the community would desire that their law enforcement personnel be paid at a higher rate."29
29 Employer Exhibit 21 Page 20
Pursuant to ORS 243.746 (4), it is my opinion that on the whole, the Association’s last best offer is in the interests and welfare of Jackson County’s public and the Association’s LBO is to be awarded to resolve the collective bargaining impasse that exists. The new contract shall include the Association’s last best offer package.
Dated: September 22, 2006