In The Matter of The Interest Arbitration between American Federation of State, County And Municipal Employees, For Two Rivers Correctional Institution, and The State of Oregon, Department of Administrative Services, on behalf of the
Department of Corrections, Employer. IA-03-99.
This interest arbitration arises between American Federation of State, County and Municipal Employees, on behalf of the Two Rivers Correctional Institute (Union) and the State of Oregon, Department of Administrative Services, on behalf of the Department of Corrections (Employer). This matter is before the arbitrator Nancy Brown pursuant to ORS 243.742-243.756 and relevant administrative rules. No procedural objections were raised. Frank Vehafric represented the American Federation of State, County and Municipal Employees, hereinafter referred to as the Union. Labor Relations Manager Mark Hunt represented the State of Oregon Department of Administrative Services' Labor Relations, hereinafter referred to as the Employer. Both parties had the opportunity to make opening statements, present documentary and testimonial evidence, to examine and cross-examine witness and to make arguments in support of their position. There were no objections to the documentary evidence. Evidence was entered in the record as Union Exhibits 1-35, excluding Union Exhibits 3 and 4 which were withdrawn by the Union; and Employer Exhibits 1-12. The parties agreed to simultaneously submit post-hearing briefs in lieu of closing argument on July 2, 1999 at which date the hearing was closed.
II. Relevant Criteria
In arriving at her Decision and Award, the Arbitrator weighed and considered where applicable the following criteria set forth in the Oregon Public Employees Collective Bargaining Act (PECBA), ORS 243.746(4), and the Rules of the Oregon Employment Relations Board ("ERB"), OAR 115-40-015(8):
ORS 243.746(4) Where there is no agreement between the parties, or where there is an agreement but the parties have begun negotiations or discussions looking to a new agreement or amendment of the existing agreement, unresolved mandatory subjects submitted to the arbitrator in the parties' last best offer packages 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. Notwithstanding the provisions of the subsection, the following additional definitions of "comparable" apply in the situations described as follows:
(A) For any city with a population of more than 325,000, "comparable" includes comparison to out-of-state cities of the same or similar size;
(B) For counties with a population of more than 400,000, "comparable" includes comparison to out-of-state counties of the same or similar size; and
(C) For the State of Oregon, "comparable" includes comparison to other states.
(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 subsections (a) to (g) of this section 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.
This arbitration involves only strike prohibited security staff members at Two Rivers Correctional Institution. The Two Rivers Correctional Institution, herein referred to as TRCI, is located in Umatilla Oregon and will be upon completion a medium custody facility with 1536 inmate beds. At present there are 89 minimum custody inmates currently working on construction of the facilities. (Employer's Exhibit #3) Staffing estimates for the first stage of the start up is approximately 90 security staff including sergeants, corporals and correction officers. Another 150 estimated staff will be added in November 1999 and an additional 10 to 15 staff added each month until TRCI is on board. (Employer's Exhibit #4 and Testimony of Supt. Schiedler) The Employer recognized the Union as the exclusive bargaining unit for the security staff at TRCI and the parties began interim negotiations on October 30, 1998. The topics of discussion included Article 25, Seniority, and Labor/Management release time. Negotiations proceeded to the point where a single issue remained - definition of seniority for purpose of shift and days off bidding. The final offers of the parties reflect their positions on this issue now before the arbitrator.
The last best offer of AFSCME is as follows:
The relevant sections of Article 25 - Working Conditions
Section 9. -- Seniority.
For the purposes of bidding under Article 25, Working Conditions, seniority is defined as time in class in the security bargaining unit, (including OWCC), except that employees in the bargaining unit on July 1, 1994, shall retain the seniority date they have in their current position until such time as the employee leaves that position.
The intent is that an employee in the AFSCME security series in July 1, 1994, keeps the seniority date negotiated in the 1992-94 Agreement for as long as the employee remains in the classification and functional unit the employee was in on that date. Once the employee leaves that position by promoting to a higher classification in the security series, transferring to a position in the same classification in another AFSCME-represented functional unit, or leaves the bargaining unit security series for any reason and then returns, the employee's seniority date will be recomputed to meet the definition of "time in class in the security bargaining unit, (including OWCC)." Seniority not sanctioned by this Agreement will not be recognized
Section 10. - Shift Bidding Procedures by Institutions
Two Rivers Correctional Institution
Bidding Process: Officers who have completed trial service may bid shifts and days off in order of seniority. Seniority is defined in Section 9 of this Article. Employees who fail to successfully bid, or who do not apply or bid, will be assigned at the discretion of the institution's management.
Bids will address only shift and days off. Bidding will occur every six (6) months, becoming effective on the first (1st) Sunday of April and October. The Security Manager shall post work schedules thirty (30) calendar days before the rotation date. The mechanics of bidding procedure shall be determined by the Employer. All bids must be in writing, signed by the bidding employee, and numbered by preference, if placing more than one (1) bid. Employees may submit up to three (3) bids. The new schedule will be posted no less that seven (7) calendar days prior to the effective date. Three (3) shifts and day off assignments will be designated on each bid cycle to be exempt for training.
The institution's management will make the specific daily work schedules and may remove or deny an employee from a bid for valid cause.
The last best offer of the State of Oregon Department of Administrative Services' Labor Relations (Employer) is as follows:
The relevant section of Article 25 - Working Conditions
Section 10. - Shift Bidding Procedures by Institutions
Two Rivers Correctional Institution
Bidding Process. Officers who have completed Trail Service may bid shifts and days off in order of seniority. Seniority is defined as service in the Department of Corrections within classification. Employees who fail to successfully bid, or who do not apply or bid, will be assigned at the discretion of the institution's management.
Bids will address only shift and days off. Bidding will occur every six (6) months, becoming effective on the first (1st) Sunday of April and October. The Security Manager shall post work schedules thirty (30) calendar days before the rotation date. The mechanics of bidding procedure shall be determined by the employer. All bids must be in writing, signed by the bidding employee, and numbered by preference, if placing more than one (1) bid. Employees may submit up to three (3) bids. The new schedule will be posted no less that seven (7) calendar days prior to the effective date. Three (3) shift and day off assignments will be designated on each bid cycle to be exempt for training.
The institution's management will make the specific daily work schedules and may remove or
deny an employee from a bid for valid cause.
IV. UNION ARGUMENT
Seniority for shift and days off bidding is of significant importance to the bargaining unit members at TRCI because it allows, in a workplace staffed seven days a week and 24 hours a day, some measure of control over their personal lives. For example, the ability to use seniority to bid shift and days off impacts an employee's family life, their child care arrangements, their ability to attend school and participate in recreational and social activities. Surveys of bargaining unit members and discussions in union meetings demonstrate that seniority for bidding purposes computed on time served within classification and within the security bargaining unit is a high priority.
Article 25 of the current Collective Bargaining Agreement defines for purposes of shift and days off bidding as time in the class in the security bargaining unit. This language was changed during the 1994-negotiations. In the previous contract, 1992-94 the seniority definition for the purposes of shift and days off bidding appeared in the individual institution subsections of Article 25 and were, in many cases dissimilar, ranging from institution time to Department of Corrections time. The Union sought in the negotiations the current contract or a "common ground" approach to seniority for bidding purposes. Seniority would be the same in all institutions covered by the contract and would be computed based on time in the class in the security bargaining unit. The Employer agreed. The Employer's final offer would reverse this "common ground" approach because it would create for TRCI employees a separate and different basis for computing seniority for bidding purposes. Under the Employer's final offer, seniority for TRCI would be based on an employee's length of service with the Department of Corrections. The impact of this proposed change would be that seniority for employees of TRCI would be different than that of the other members of the bargaining unit employed in the other seven correctional institutions. The Union argues that this would be a significant reversal of the "common ground" approach gained in the 1994 negotiations and is a take-back.
The Union further argues that the Employer has not proven that its final offer is in the interest and welfare of the public but merely asserted that such is the case. The Employer has asserted that its change in seniority definition is necessary because the current Article 25 language creates a barrier to transfer of security staff from other Correction Department facilities not represented by AFSCME. The Employer has asserted that this language change is important and necessary if the Correction Department is to fulfill its mission and complete the second phase of its expansion. Yet the Employer has not had a consistent bargaining position on this issue. In the previous contract, the Employer had in four of the seven institutions covered by the agreement seniority language based on Department of Corrections time yet it agreed to the current "common ground" approach. If the issue was of such importance to the Employer why has there been no policy regarding transfer at any time since the contracts were bargained. The evidence of transfers from 1997-99 presented by the Employer in Employer's Exhibit #12 demonstrates conclusively that the seniority language that it believes is critical to transfer is in fact irrelevant. The Employer has merely asserted that the seniority for bidding language based on bargaining unit time deters current security staff from transferring to TRCI yet it has conducted no surveys of employees who have transferred to find out what motivated them. In a matter of such importance to the Department of Corrections, a reasonable person might expect at least a rudimentary effort at data gathering, yet none was attempted. The Employer ought not to be able to simply assert that a proposal is in the public interest in order to achieve a favorable award. The Employer needs to show that its assertions are founded in fact and represent a real contribution to the interest and welfare of the public. The alternate is to give the Employer carte blanche to rewrite collective bargaining agreements unilaterally by simply taking disputes to interest arbitration.
The Union argues that its final offer proposal is in the interest and welfare of the public and in particular directs the arbitrator's attention to the preamble of the Public Employee Collective Bargaining Act (ORS 243.656) in making her determination. The policy statement here says, in part. "The people of this state have a fundamental interest in the development of harmonious and cooperative relationships between government and its employees" [ORS 243.656(1)]. The legislature let stand language in this policy statement which identifies at least in part, a fundamental interest by the people of this state in the development of harmonious and cooperative relationships between government and its employees. The Union is merely proposing the current contract language be applied to the employees of the new institution, Two Rivers Correctional Institution. To do otherwise would have a serious impact on the TRCI employees and its relationship with the employer.
In addition, the bargaining unit is under hostile attack from a competing labor organization that may lead to a unit representation election. Union members experience feelings of loyalty to their Union and their brothers and sisters in the Union. For the Union to agree to or be awarded contract language which confers a benefit on members of a competing and hostile labor organization to the detriment of the members of their own organization might well inaugurate a period of considerable internal strife as well as external attempts to disrupt the organization. This atmosphere would put the Union in a defensive position which can lead to posturing at bargaining and hyper-aggressiveness in dispute resolution, neither of which is conducive to harmonious labor relations and therefore not in the interest and welfare of the public.
V. EMPLOYER'S ARGUMENTS
The Arbitrator must base her finding and opinions on the clearly delineated statutory criteria in determining the merits of the final offers giving first priority to paragraph (a), the interest and welfare of the public and secondary priority to subsections (b) through (h). The Employer's position is that the current language of Article 25 does not recognize the needs of the Employer as it brings a new institution into operation. The interest and the welfare of the public are best served where the Department of Corrections is allow to recruit and assign employees based on overall experience within the Department, not solely based on length of time in a bargaining unit. The current language on seniority for bidding on shift and days off is a barrier to current security staff transferring particularly from the Oregon State Penitentiary, Oregon Correctional Institution, Mill Creek Correctional Facility, and South Fork Forest Camp all represented by the Association of Oregon Corrections Employees (AOCE). For example, if the Union proposal was adopted a transfer to TRCI for current security staff from Oregon State Penitentiary would mean a loss of seniority for bidding purposes. In essence the transferee would be equal in seniority to a new hire despite their years of experience as a Corrections Officer. This loss of seniority could be a detriment to such an employee's interest in transferring to TRCI. The Union's last best offer would unduly penalize over 25% of the total security workforce and chill employee interest to transfer. Removal of this barrier to transfers would allow the Agency to recruit internal security staff as TRCI comes on line.
The mission of the Oregon Department of Corrections is to promote public safety by holding offenders accountable for their actions and reducing the risk of further criminal behavior. Voter initiatives have mandated the Agency to begin its second major expansion within the past decade. The Two Rivers Correctional Institution located in Umatilla is the first of five new correctional facilities that are part of the second phases of major expansion. When construction of TRCI is completed, employment is expected to be at 405 employees. An additional 1,823 employees are anticipated when the remaining proposed institutions are brought on line. In light of these events, the seniority provision sought by the Union presents unnecessary obstacles to the Agency's ability to meet the staffing demands of these new prison facilities. Recruitment efforts are being made to staff TRCI from the general labor market and internally. Lateral transfers are an integral means for securing trained and competent staff. Because security and custody are essential functions within penal institutions, a trained staff to compliment those hired from the general labor market is particularly important for the safety and security of both inmates and staff. Their experience is particularly valuable as TRCI is brought on line.
In addition, the language proposed in the Union's final offer would negatively impact the Employer's ability to have a diverse workforce. Transfers from west of the Cascades are needed if the workforce at TRCI is to include females and persons of color. It is in the interest and welfare of the public so that the barriers to lateral transfers are removed and TRCI can successfully recruit a diverse workforce.
The Union argues that its final offer is in the interest of welfare of the public and should be adopted because it will boost the morale of the employees and led to harmonious relationships between the employer and its employees. This suggests that any failure by an employer to agree adversely affects employee morale and therefore cannot be in the best interest and welfare of the public. Such an argument nullifies the underlying intent of the PECBA and the dispute resolution process. The Union also argues that bargaining unit seniority is necessary for "protection" against a competing labor organization. However at the time of the described de-certification of AFSCME representation at the Oregon State Penitentiary the language of the then existing collective bargaining agreement on the issue in dispute included provisions for seniority based on Department of Corrections time. While little can be done to influence the relationship between two competing organizations, ultimately the question of union representation must be considered secondary to the larger concern of the interest and welfare of the public.
While the interest and welfare of the public should be given first priority it is not a stand-alone criterion. The PECBA also instructs the arbitrator to give secondary priority to subsections (b) through (h). Of the statutory criteria listed, subsections (b) and (d) through (h) are not applicable to the dispute before the arbitrator. The subsection (c) the ability of the unit of government to attract and retain qualified personnel at the wage and benefit levels provided is applicable. Though there is no direct compensatory value assigned to either final offer, seniority is an enormously important issue to employees. The ability to attract and retain qualified personnel is impacted by an employer's ability to provide a seamless workforce within its organization. A fungible workforce and the ability to transfer and allow transfers without penalty are essential. The Agency's ability to attract skilled employees within its organization should not be encumbered by arbitrary walls between competing unions. It should be noted that no similar barrier or penalty exists for employees wishing to transfer from AFSCME or OPEU to AOCE. The final offer of the employer is consistent with other collective bargaining agreements administered by the State. None of the agreements provided in evidence include language that limits seniority to time in the bargaining unit.
Subsection (h) of the statutory criteria is also applicable to this arbitration. Subsection (h) reads Such other factors, consistent with paragraphs (a) to (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 paragraphs (a) to (g) of this subsection provide sufficient evidence for an award. In addition to the arguments presented in response to subsection (c) and noted above, the Employer argues that to justify changing an existing contractual relationship, there needs to be evidence that the existing situation is unworkable or inequitable; evidence of a quid pro quo, and proof of a compelling need. The language of the Employer's final offer is consistent and equitable not only with other agreements administered by the Department of Corrections but with others across state government. In contrast, the Union's final offer must be considered inequitable to Department of Correction's employees not represented by AFSCME. There is evidence of a quid pro quo as the Employer's final offer is consistent with other contracts administered by the Department of Corrections. There is a compelling need for adoption of the Employer's final offer. The Department of Corrections, in response to public mandate, is embarking on a significant expansion. The current language for seniority for shift and days off bidding is a barrier to the Department's ability to attract skilled security staff by transfer of such employees from Correctional Institutions not represented by AFSCME.
This interest arbitration arose from the interim negotiations over bidding language for shift and days off for security staff at TRCI. The interest arbitration award will control during the status quo period until negotiations for a successor agreement are completed. During this time period an estimated 150 to 170 security staff may be hired at TRCI. (Testimony of Supt. Schiedler) At this time, the State and AFSCME are negotiating that successor agreement and one of the issues on the negotiations table is bidding for shifts and days off. The arguments, testimony and evidence presented by the parties at times appeared to this arbitrator to address this seniority issue in the context of the negotiations for the successor agreement. In other words how the respective proposals could impact employees at all eight correctional facilities covered by the contract or how the respective proposals could impact the ability to transfer experienced staff to the institutions that will go online in the future. It is understandable that this could occur but it is important to remember that the issue before this arbitrator applies to the security staff at TRCI and the circumstances surrounding the staffing of this institution during this status quo period.
The arbitrator must consider in making her decision the statutory criteria outlined in ORS 243.746(4). The first priority she must consider is the interest and welfare of the public and secondary priority to subsections (b) to (h). The parties each maintain that their proposal is in the best interest and welfare of the public. The Union maintains that adoption of its language will maintain employee morale and positive relations with the Employer in addition to preserving positive labor relations. The Employer maintains that its proposal will provide a seamless workforce allowing the Employer to staff TRCI via transfer of experienced security staff. Yet the statute does not explain what the term "the interest and welfare of the public" means and therefore gives limited guidance to an arbitrator. It is clear however that the criteria, the interest and welfare of the public, does not stand alone but must be given greater priority than the secondary criteria listed. The secondary criteria should assist the arbitrator in determining what is in the best interest and welfare of the public. (In the Matter of Interest Arbitration between Bend Firefighter Association and City of Bend, 1996)
Unfortunately because of the nature of the issue before the arbitrator much of the secondary statutory criteria is not applicable or instructive. As this arbitration does not involve wages, direct or indirect monetary benefits, the following statutory criteria are not applicable: Paragraphs (b), (d), (e) and (f). The Employer argues that paragraph (c) applies: the ability of the unit of government to attract and retain qualified personnel at the wage and benefit levels provided. The Employer argues that seniority for bidding purposes is a benefit that affects its ability to attract qualified personnel to TRCI. However, the criteria speaks to attracting personnel at the *wage and benefit levels provided* (* *emphasis added). Historically both pre and post Senate bill 750, this has been the common interpretation. It appears to the arbitrator that the criteria speaks to the economic incentives such as wages, health insurance or premium pay that would attract from the labor market and retain personnel and therefore this criteria would not apply to the issue before the arbitrator. However she will address the employer's arguments in the discussion below.
This leaves the remaining statutory paragraph to consider: (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 paragraphs (a) through (g) of this subsection provide sufficient evidence for the award. For the reasons mentioned in the two paragraphs above, the arbitrator finds that the factors listed in paragraphs (a) through (g) do not provide sufficient evidence for the award. Therefore the arbitrator must turn to this "catch-all" criteria, paragraph (h) Such other factors, consistent with paragraphs (a) though (g) of this subsection as are traditionally taken into consideration in determination of working conditions….
Factors traditionally used by interest arbitrators to determine working conditions when one or both parties propose changes in the existing contractual relationship are: (1) is the current situation inequitable; (2) was there a quid pro quo; and (3) is there proof of a compelling need. (In the Matter of the Interest Arbitration between Bend Firefighters' Association and City of Bend, 1996) These three factors are also consistent with the secondary criteria. For example, in order to prevail a party must demonstrate a compelling need for their economic final offer such as the inability to retain or recruit personnel or an inability to pay. Or a party must demonstrate that there is an inequity in the current wage as compared to other comparable jurisdictions. As these three factors are traditionally considered when determining working conditions and are consistent with the secondary criteria, the arbitrator will use these factors to analyze the dispute before her.
These factors are applicable in the case before the arbitrator; both parties wish to change the current practice regarding the definition of shift bidding at TRCI. The current practice, as determined by management, defines seniority for bidding purposes as time in state employment. (Employer's exhibit #7)(1) This could be time employed in other state agencies and or the Department of Corrections regardless of classification. The Employer is proposing time with the Department of Corrections within classification and the Union is proposing Article 25 or time within the security bargaining unit.
The first factor that must be considered when a change is proposed is whether the existing situation is inequitable and if the change would remedy that inequity. (In the Matter of Interest Arbitration between the Bend Firefighters' Association and the City of Bend, 1996) There is no question that the Union's proposal represents a hardship for those Corrections Officers who transfer into TRCI and as such is inequitable. While it is true that the Employer's proposal would eliminate this inequity; it also creates another inequity. The Employer's proposal for the Corrections Officers employed at TRCI would be inconsistent with the seniority for bidding language enjoyed in the other eight institutions represented by the AFSCME. Employer offered in evidence the seniority language from a variety of State contracts in order to show the consistency and therefore equity of their final offer. (Employers Exhibit #9 a-i) However with the exceptions of a: the seniority language for bidding purposes for AOCE represented bargaining unit, the seniority language offered in evidence applies to layoff and vacation scheduling and is not relevant to the issue before the arbitrator. (Employer Exhibit #9 a-i) Reviewing this evidence, the arbitrator is not persuaded that either party was able to demonstrate that their proposal is the more equitable.
The second factor to be considered is whether a quid pro quo exists to justify taking away a benefit previously obtained through a negotiated settlement. (In the Matter of Interest Arbitration between the Bend Firefighters' Association and City of Bend, 1996) Webster's dictionary defines a quid pro quo as one thing in return for another. The arbitrator finds this factor to be of scant relevancy in this particular case. First, there was no previous negotiated benefit that one party was seeking to change or take away. The negotiations that gave rise to this interest arbitration incorporated a new institution, TRCI, into the AFSCME collector agreement for the eight AFSCME institutions and isolated for negotiations a limited number of topics. (Union Exhibits #21, 29, and 30 and Employer Exhibits 1 and 2) The opportunity for any quid pro quo exchange in this negotiation was limited.
The third factor is whether the parties were able to show that there is a compelling need for the change they were advocating in their final offer. (In the Matter of Interest Arbitration between the Bend Firefighters' Association and the City of Bend, 1996) The Employer maintains that seniority based on bargaining unit time is a barrier to recruiting experienced security staff by transfer from those institutions not represented by AFSCME. Transfers from the AOCE represented institutions are necessary to augment the local labor pool and recruit experienced security staff for TRCI. (Employer Exhibit #10 and testimony of Supt. Schiedler) If the arbitrator was to award the Union's final offer, a Corrections Officer now employed at an institution not represented by AOCE could be deterred from transferring to TRCI. He or she would lose all seniority rights for bidding purposes and would be equal to a new hire regardless of his or her years with the Department of Corrections. Seniority defined as time in the AFSCME bargaining unit is an unnecessary barrier to transfers to TRCI from west of the Cascades and should be removed. (Testimony of Supt. Schiedler and Wells)
The Employer offered as proof of the need to remove the barrier to transfer Employer Exhibit #12.: entitled Employee Transfer Information 1997-1999. The Employer asserts that twice as many AFSCME represented employees transferred to institutions represented by AOCE than AOCE employees transferred to AFSCME represented institutions from 1997 to 1999. They interpret this data to demonstrate that fewer AOCE represented employees transferred to AFSCME represented institutions because of the seniority bidding language. And that AFSCME represented employees transferred to AOCE represented institutions because they could or would gain seniority for bidding purposes. (Employer Exhibit #12 page 6 and testimony of Hansen)
A review of the Employer's Exhibit #12 shows that it includes of transfers of all Corrections employees from 1997-99. For the purposes of my analysis I will focus only on those transfers of corrections officers (Class #s: C6775, C6776 and C6777) as that transfer information is relevant to this interest arbitration.(2) In addition, out of the 98 corrections officers who transferred from 1997 to 1999, 18 officers, or 25% of the total, transferred within their own institution where seniority bidding for shift or days off was not a factor. Also 60 other corrections officers transferred within their bargaining unit; again seniority for bidding purposes would not have been an issue.
Of the 20 officers who crossed bargaining unit lines and transferred to a new institution, eight moved from AOCE to AFSCME and would have been negatively impacted by the seniority language of the current AFSCME contract. Twelve corrections officers transferred from an AFSCME bargaining unit to an AOCE represented bargaining unit and did not lose and may have gained seniority for bidding purposes. Mr. Wells testified that there are approximately two times more AFSCME represented corrections officers than those represented by AOCE or a ratio of two to one. Yet the ratio for transfers from AOCE to AFSCME was does not reflect that same ratio. If seniority bidding had a significant impact on transfers, would it not be reasonable to assume that the ratio of AFSCME to AOCE transfers would have been significantly greater? It was not.
It is also instructive to look at the transfers to South Fork Forest Camp represented by AOCE. Seniority for bidding for shift and days off is defined as time at South Forks Forest Camp (SFFC). (Employers Exhibit #9a) Four corrections officers moved to SFFC and in doing so lost all seniority for bidding purposes. Two moved from SFFC to an institution represented by AFSCME where they would lose their seniority for bidding purposes rather than to the OSP where their time at SFFC would have counted. While the number of transfers to South Fork Forest Camp are small in number, only six in total, these transfers illustrate that corrections officers wishing to transfer are not chilled by the loss of seniority for bidding purposes but may be motivated for other reasons such as a desire for a change in work environment.
Of the corrections officers who transferred to another institution whether in or out of their bargaining unit, 21 officers transferred to institutions within the Salem area and 26 moved within the same region either east of the mountains or within the Willamette Valley or north coast. 14 of those who transferred within the same region transferred from Eastern Oregon Correctional Institution (EOCI) to TRCI. 16 transferred from east of the mountains west and 10 transferred from the Willamette Valley to eastern Oregon. One corrections officer moved south to Shutter Creek and 11 moved north. In addition 11 transferred to Transport; it would be reasonable to assume that such transfers reflected a change in type of work assignments.
Based on the information regarding transfers from one institution to another, it is more likely than not that various factors influence an officer's decision to transfer to another institution. Factors such as geographical considerations, where the officer is presently located or where he or she wishes to live, or a change in type of work assignments could reasonably be inferred to influence these decisions. While the Employer asserts that the seniority language based on bargaining unit time within classification was and therefore will be a barrier to transfer to TRCI and therefore needs to be removed so that this new institution may be adequately staffed, the evidence does not show that to necessarily be the case. Furthermore the Employer made no inquiries of those who transferred as to what motivated their desire for a transfer. Nor did the Employer's information include those who may have wished to transfer but were denied. (Testimony of Hansen) The Employer did not prove that such a barrier to transfer existed during the transfers from 1997-1999 nor would AFSCME bargaining unit seniority be a deterrent to transfers to TRCI in the near future. Therefore the arbitrator finds that the Employer did not prove that there was a compelling need to define seniority as time with the Department of Corrections and in doing so remove a barrier to future transfers to TRCI from institution represented by AOCE.
The Employer also argued that it needed to recruit transfers from Correctional Institutions in the Willamette Valley in order to achieve a diverse workforce; that it is in the Willamette Valley that women and persons of color particularly African Americans are a part of the local labor market. (Testimony of Wells)(3) Seniority based on time in the Department of Correction would be necessary for a successful recruitment from those AOCE institutions located in the Willamette Valley. The Employer placed into evidence in support of this argument Employer Exhibit #6 showing the diversity of the corrections officer workforce in the Department of Corrections as whole and for OSP and OSCI. The chart shows in summary that corrections officers overall are below parity for women and above parity for persons of color especially among Hispanic employees. This is true of OSP and OSCI as well; in fact OSCI is above parity for African Americans. The Employer however presented no evidence that in the recent recruitment for TRCI women and persons of color were deterred from transferring from OSP or OSCI because of the potential that their seniority for bidding purposes would be negatively impacted and merely asserted that this would be a problem in the future. While the Employer did not include the AFSCME represented institutions in its chart, it is logical to assume that the figures would reflect similar parity in those institutions as for the Department of Corrections as a whole.(4) With the exception of Columbia River Correctional Institution and Oregon Corrections Intake Center located in the Portland area and Santiam Correctional Institution and OWCI(5) the majority of the AFSCME represented units are not located within the Willamette Valley labor market. Yet the Employer has been able to recruit and hire women and persons of color for AFSCME represented institutions. The arbitrator was not persuaded that there was a compelling need to adopt the Employer's proposal on seniority in order for the Employer to employ a diverse workforce for TRCI.
The Union argues that there is a compelling need for seniority for employees at TRCI be defined pursuant to Article 25 of the Collective Bargaining Agreement. In summary Article 25 defines seniority as time in class in the security bargaining unit. Except employees in the bargaining unit on July 1, 1994 shall retain the seniority date they have in their current position until such time as the employee leaves that positions by either promotion, transfer to another AFSCME represented unit or leaves the bargaining unit for any reason and then returns. (Union Exhibit #14) The Union argues that bargaining unit time is necessary because the Employer's proposal could mean a reduction in relative seniority status for the TRCI security staff. This reduction would have a dramatic impact and negative effect on members' lives.
If the Employer's proposal, seniority based on time in class with the Department of Corrections, is adopted, what would be the ramifications for those employees hired at TRCI now or in the near future. There are three possible scenarios. Each of the scenarios is based contemplates a transfer from AOCE represented institutions namely OSP, OSCI, SFFC and Mill Creek Correctional Facility. These are older correctional institutions and it is logical to assume that security staff there may have more time in class with the Department of Corrections. The AFSCME represented facilities are part of the first expansion of the correctional system and are newer facilities brought on line within the past decade. (Testimony of Wells) (1) For the TRCI employee with a few years of seniority, a transfer from AOCE represented institutions could conceivably result in a reduction in their relative seniority status. (2) An employee who transfers to TRCI from another AFSCME represented facility would lose any seniority he or she retained as of July 1, 1994. (See Article 25, Union Exhibit #14) For this employee the impact of a transfer from an AOCE represented institution could have less impact as under the Employer's proposal as they would "gain back" any seniority they lost in the transfer. (3) An employee who had only been working in an AFSCME represented facility and who had transferred to TRCI could be negatively impacted by a transfer from an AOCE represented institution. This employee's time with the Department of Corrections would have been most likely in one of the institutions brought on line within the past decade. (An employee who transferred from OWCI to TRCI would be the exception.) It is conceivable that an employee transferring from OSP and OSCI could have greater seniority with the Department of Corrections.
A review of Union Exhibit #24 is illustrative; this exhibit gives the seniority dates by classification of the 16 employees employed at TRCI as of October 30, 1998. Eight of these employees or half have seniority dates of approximately 5 years or less and three were hired less than a year ago. Eleven of the 16 employees listed are corrections officers and all eleven transferred from EOCI; the most senior was hired in 1989. Under both parties' proposal, new hires would not impact their seniority. However transfers from other institutions could impact their relative seniority. While it is true that a transfer from an AFSCME represented institution could impact their relative seniority; the employer's proposal could conceivably have a greater negative impact.
The arbitrator finds that the Union has demonstrated that the Employer's proposal could negatively impact security staff now at TRCI and potentially those hired in the near future. A seniority definition for bidding purposes based on time with the Department of Corrections could conceivably reduce the relative seniority of the TRCI security staff
The Union argues that the Employer's proposal for TRCI is not consistent with the
"common ground" approach bargained with the State during the negotiations for the 1994-99 contract. At that time the varied seniority definitions for bidding purposes were abandoned in favor of a common definition for all security staff represented by AFSCME. The Union argues that the Employer final offer eliminates the "common ground" approach negotiated in 1994 and establishes a different seniority definition for bidding purposes for security staff in TRCI than that enjoyed in the other eight institutions covered by the same collector agreement. This difference in seniority definition represents an unjustified take back and is unfair to TRCI security staff.
The Union's arguments are persuasive. A review of Article 25 shows that while there are local or institutional differences as to how the bidding process will be implemented seniority is calculated the same for each institution covered by the Agreement. It was in the Employer's interest that the TRCI security staff represented by AFSCME be incorporated into the AFSME collective bargaining agreement rather than as a separate bargaining unit with its own separate contract. (Union Exhibit # 21) The current contract is a "collector" agreement. (Testimony of Schneider) One of the purposes of a collector agreement is negotiations efficiency; but arguably another purpose is to achieve consistency of major provisions across the institutions cover by the contract. Unless the Employer can demonstrate a compelling need to eliminate the "common ground" approach for the TRCI security workforce, the seniority language for bidding should not differ from that enjoyed by the other members of the bargaining unit.
The Union argues that the arbitrator should adopt their proposal in order to preserve labor peace between the Union and the Employers. Considering the challenge the Union has experienced from a rival union, for the arbitrator to do otherwise could result in the Union having to take a more aggressive stand in order to counter the rival union's challenge to their representation. (Testimony of Schneider) However the arbitrator was not persuaded that the adoption of the Union language would protect the Union from challenges by the rival union or would it impact the votes of the membership involved. The loyalty to the Union runs strong among those in the AFSCME unit (Testimony of Wolfe) and it is reasonable to assume that this issue alone would not impact that loyalty. Whether the Union takes a more aggressive stand with the Employer or continues to work more collaboratively is up to the Union and what it considers to be in its best interests overall. The arbitrator is not convinced that this award, regardless of how it is decided, will materially affect those internal Union decisions.
In summary, when the arbitrator analyzed the three factors that are traditionally considered in determining if a change in working conditions is justified, the arbitrator finds that neither party's final offer remedies existing inequities. Nor did the arbitrator find that in the circumstance of this case a showing of a quid pro quo for a change in an existing negotiated benefit was relevant. However, proof of a compelling need for the proposed change in the current practice was relevant and the most significant factor. The Employer argues that seniority defined as time in class with the Department of Corrections was needed in order to remove the barrier to transfers from institutions represented by AOCE. However the Employer did not prove that such a barrier existed during the last two years and would therefore be a continuing barrier in the near future. It had made no survey into why employees transferred or desired a transfer. Nor did the Employer demonstrate that its final offer was needed to ensure a diverse workforce at TRCI. The Union, on the other hand, demonstrated that for security staff now at TRCI and those hired in the near future, seniority based on time in class with the security bargaining unit was needed. Otherwise, TRCI would be the only institution of those covered by the AFSCME collector agreement where seniority was not based on bargaining unit time. The TRCI security staff would not enjoy a benefit enjoyed by the security staff in the other institutions. The Employer's final offer would be inconsistent with one of the purposes of a collector agreement and unfair to TRCI employees. If seniority is defined as time with the Department of Corrections, the employees at TRCI could be disadvantaged in regards to their relative seniority by a transfer by an employee from AOCE represented institutions. This would not be the case in the other institutions covered by the Collective Bargaining Agreement.
The arbitrator must give the interest and welfare of the public first priority in determining which of the parties' final offer should be awarded. Yet the arbitrator's analysis using the secondary criteria should assist him or her in making that determination. This is true when the final offers consist of a package of economic proposals and it is the case where, as here, one non-economic issue is in dispute. As mentioned above, the secondary criteria relevant to this issue was the "catch all" criteria (h) such other factors, consistent with subsections (a) to (g) of this section as are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment.
From those factors traditionally considered when determining whether a change in current practice is warranted, proof of a compelling need for the proposed change was most significant. Proof of a compelling need is inherent in the statutory criteria itself and is therefore an appropriate guideline for determining, in this case, which final offer best serves the interest and welfare of the public. From the arbitrator's analysis discussed above, she concludes that the Employer did not prove a compelling need for a seniority definition based on time with the Department of Correction in order to remove a barrier to a corrections officer's transfer from a AOCE represented institution to TRCI. And the arbitrator finds that the Union did demonstrate that the Employer's language could negatively and inequitably impact current TRCI security staff members and those hired in the near future. Without the Employer showing that it has a compelling need for the adoption of its final offer and as that final offer would impact or disadvantage the TRCI security staff and those hired in the near future, the arbitrator finds that the final offer of the Employer would not be in the interest and welfare of the public.
Having carefully considered all evidence submitted by the parties concerning this matter and complying with the statutory criteria, the arbitrator awards the Union's last best offer as Article 25 of the parties' collective bargaining agreement 1997-1999.
Respectfully submitted this 1st day of August 1999
Nancy E. Brown
Representative for the Union: Frank Vehafric
Representative for the Employer: Mark E. Hunt
1. The employer argued that the status quo was that the definition of seniority for bidding purposes was at the discretion of management. I will leave questions of what is the status quo to the appropriate jurisdiction. Suffice it to say that for the present management exercised its discretion and put into place the current practice.
2. The arbitrator was not provided information as to whether the other employees listed are subject to 24 hour 7 days a week work schedules and if they are, do their collective bargaining agreements or Department of Correction policy address bidding for shifts and days off.
3. It is assumed that the Employer would recruit females and persons of color to transfer to TRCI and then fill their now vacant positions from the local labor market.
4. AFSCME represents twice the number of security staff as AOCE. If AFSCME's parity figures were low, the overall parity figures would be negatively impacted. This was not the case.
5. These three institutions have a comparatively small number of employees. (Employer Exhibit 3 and 4))