|In The Matter of Interest Arbitration: Department of Corrections, State of Oregon and Association of Oregon Corrections Employees. IA-06-99.
This proceeding is in accordance with ORS 243.746 which requires the Arbitrator to decide which of the parties' last offers shall be adopted relative to change for the parties' Collective Bargaining Agreement covering the period July 1, 1999 through June 30, 2001. A hearing in this matter was held on October 18 and 19, 1999 and the record closed on November 29, 1999, the date agreed upon for filing of post hearing briefs. The parties stipulated the Arbitrator would have sixty (60) days after November 29 to issue his opinion, findings and order.
The Union represents correctional officers and support personnel at four facilities of the Department of Corrections:
Facility Location No. of Staff
1. Oregon State Prison (OSP) Marion County 546
2. Mill Creek Correctional Facility (MCCI) Marion County 59
3. Oregon State Correctional Institute (OSCI) Marion County 227
4. South Fork Forest Camp (SFFC) Tillamook County 15
The parties came to an impasse in their bargaining on a successor Agreement to their 1997-1999 contract. This proceeding is the result of that impasse.
The arbitrator shall base his/her findings, opinions and order upon the following criteria, giving first priority to subsection (a) and secondary priority to subsections (b) and (h):
(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 age 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) Comparison 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 this 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 subsections (a) to (g) of this section provide sufficient evidence for an award.
Analysis and Conclusions
ORS 243.746 directs the Arbitrator to evaluate the reasonableness of each party's final offer in light of the criteria enumerated in the statute, giving first priority to the interest and welfare of the public. The discussion now turns to the Arbitrator's evaluation of key proposals made by the parties in the context of these criteria.
The Employer used state comparisons to support its proposals while the Association used Oregon county comparisons. On balance, both approaches have statutory merit, the Association's by virtue of subsection (h) relative to the labor market in the Portland-Salem area; the Employer's by virtue of the specific language of subsection (e).
However, both parties' comparisons are flawed. The Association's is flawed because it fails to include counties contiguous to Marion County where virtually all its members work. The Employer's is flawed because it places inordinate weight on state population in its analysis.
The Arbitrator concludes a more balanced approach is to focus on the total compensation of corrections officers in the states contiguous to Oregon. The Association's analysis of total compensation for a top step correction officer in 1999 discloses Oregon ranks second (1.1.6):
State Total Monthly Compensation
The mean average of compensation for the four comparison states is $3,948. The Association argued that given the weighted average that Oregon's total compensation was 15.6% below average. However, using the simple mean average, Oregon's top step officers' compensation is actually 1% above the mean average total compensation. Moreover, if the Association's proposal for LTD insurance plus premium pay for DPSST certification are included in total compensation, then the total compensation of Oregon officers is over 2% higher than the average. The Association did not show why their unit members were more competent and productive to warrant total compensation dramatically above correction employees in Oregon's neighboring states.
In light of this analysis, the Employer's total compensation offer is found to be more reasonable. It will result in Oregon officers comparing favorably with those in other states as well as with changes in the cost of living.
Premium Pay Proposals
The Association proposed that a unit employee with relevant bilingual skill receive the same 4% monthly premium as employees now designated by the Employer for translating duties. It is inequitable to grant the same pay to employees who use their language skill only on occasion to those who are directed by the Employer to translate on a regular basis. Accordingly, the Arbitrator finds the Employer's status quo proposal more reasonable on this issue.
The Employer proposed an overhaul of the current bid system. It would result in fewer bid cycles and more rotation of staff among positions. Although the Arbitrator recognizes the administrative advantages of this proposed change, he is not convinced such dramatic change in conditions is warranted at this time by the evidence.
The prior Agreement was a negotiated one. The Employer found it reasonable at the time to agree to the current bid procedures. It has failed to show how operational needs have changed so significantly in two years to warrant such a dramatic change in the bidding process. Accordingly, the Association's proposal is found to be more reasonable.
The Association proposed that a supervisor's working file on an employee be open to inspection by the employee just the same as that employee can inspect his or her personnel file currently. The Association also proposed new language that would require "stale" contents of a personnel file be removed. The Association presented no evidence that such policies are the norm in collective bargaining agreements in comparable employment situations. Moreover, the inexactness of the term "stale" would make implementation of this proposal difficult. Accordingly, the Arbitrator concludes the Association's proposal is not reasonable.
The Association proposed expansion of paid release time for its representative to bargain and meet with professionals regarding investigations of grievance and unfair labor practices. These proposals for additional time off contain no limitations on the amount of time that can be used by Association representatives for these activities. Moreover, there is no evidence that parties similarly situated have agreed to such language. Accordingly, the Arbitrator finds these proposals are not reasonable.
The Association proposed that the Employer be required to provide copies of all "notes and documentation" used by experts hired by the Employer relative to disciplinary investigations. The Association provided no evidence it would be within the power or ability of the Employer to produce such documents. Therefore, this proposal is not reasonable.
The Association also proposed that employees be permitted to tape record investigatory interviews and have custody of the tape. This would purportedly insure an accurate record of what was discussed during the interview. However, the mere fact that tapes are made and kept by the employee might appear unfair to the press and the public. It is for the same reason that witnesses testifying about the same events are typically sequestered in fact finding hearings. Therefore, the Arbitrator finds this proposal unreasonable.
Based on the foregoing analysis of the parties' main proposals and a review of the evidence and argument presented, the Arbitrator finds the Employer's last offer is more reasonable that the Association's when measured by the criteria set out in ORS 243.746.
The only major proposal of the Employer to be found unreasonable was the one proposing a substantial overhaul of the bidding process. By contrast the Arbitrator found the Association's proposal on such major issues as the total compensation package, relationship issues, premium pay and employee rights to be unreasonable.
The Arbitrator recommends the parties continue discussions on the changes that flow from adoption of the Employer's last offer, particularly in relation to shift bidding inasmuch as the Employer proposed a major revision of the bidding process. The Arbitrator believes that good faith consultation can result in an implementation plan that will preserve to employees some of the benefits of the old system.
1. The Arbitrator selects the final offer of the Department of Corrections, the Employer in this matter.
2. Pursuant to ORS 243.746(6) the Employer and the Association shall each pay one-half the Arbitrator's bill for services.
Arbitrator: Philip Kienast
January 4, 2000
For the Association: John Hoag, attorney at law
For the Employer: Stephen D. Krohn, assistant attorney general