|In the Matter of the Interest Arbitration Between American Federation of State, County & Municipal Employees, Local 315-7 ("AFSCME"), and Clackamas County, Oregon ("County"). IA-08-04.
This is an interest arbitration pursuant to ORS 243.742 et sec. There is no dispute that the bargaining unit at issue consists of emergency telephone workers (as that term is used in ORS 243.736) of the Central Communications Department ("C-COM"). The issues address compensation and employee work schedules; but there is no dispute that the dispute over work schedules is the most important issue in the case.(1) The parties stipulate that the statutory conditions have been satisfied. The hearing was orderly. Each party had the opportunity to present evidence, to call and to cross examine witnesses, and to argue the case. The parties filed timely post-hearing briefs.
Statutory criteria. ORS 243.746 (4) provides that
* * * 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. * * *
(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) comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities. * * *
(d) The CPI-All Cities Index, commonly known as the cost of living.
(e) The stipulations of the parties.
(h) Such other factors, consistent with paragraphs (a) to (g) of this subsection as are traditionally taken into account * * * 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.(2)
Introduction. This case presents surprisingly little factual dispute. Most importantly, the parties emphatically agree that the overweening issue is here which of the two work schedule proposals best serves the interest and welfare of the public. AFSCME proposes to continue the existing schedule of four days on and four days off (with substantial built-in overtime)--hereafter the "4-4" schedule--and the County proposes to adopt a new schedule of four days on and three days off--hereafter the "4-3" schedule. There are also different compensation proposals (and an overtime notice proposal from AFSCME).(3) The parties dutifully built a record addressing the statutory factors comparability, cost of living, and the financial condition of the County (and of the special funding of C-COM). But the heart of the dispute is the parties' respective proposals for work schedules and how those alternatives might affect C-COM's ability to attract and retain dispatchers, and to fulfill its responsibility to the many agencies who use its services, and so to fulfill its responsibility to the public.
History. C-COM provides emergency dispatch service for all of Clackamas County except the Cities of West Linn and Lake Oswego. C-COM is financed through user fees from the many agencies it serves, and those agencies participate in a "User Board" which has substantial input into the overall direction and management of the agency.
These parties have been to interest arbitration before. This emergency dispatch bargaining unit split off from a wall-to-wall County unit in 1986. In 1987, Arbitrator Tim Williams (NAA) decided a case that was strikingly similar to the case at hand in many respects.(4) The Union proposed a 4-4 x 10 workweek; the County proposed a 5-2 x 8 workweek. The interest arbitration statute in effect at that time allowed the arbitrator to avoid the excesses of both parties' proposals; and what Arbitrator Williams awarded was the 4-3 x 10 workweek which the County proposes in the case at hand. The beginning of his 1987 discussion of work schedule applies equally well to this case in 2004:
Both parties agreed that this issue was the largest single barrier to settling their labor contract dispute. The current schedule of four days on and four days off is a schedule that is of substantial importance to the employees and, according to the Employer, a substantial burden to the County. The majority of the testimony and argument presented by the parties focused on this issue. (At pp. 7-8.)
Arbitrator Williams' case came only about a year after the emergency dispatch unit split off from the wall-to-wall County employee unit; and it also came about a year after the U.S. Supreme Court made it clear that FLSA overtime restrictions apply to public sector employers as well as to private sector employers. (Garcia v. San Antonio Transit Authority, 105 U.S. 1005 (1985)). All across the country, public employers were faced with the administrative requirements and financial consequences of that abrupt change in generally understood rules of the game. The County argument that arbitrator Williams found most convincing in 1987 was its claim that the Union's proposal to continue the 4-4 schedule would be "an accountant's nightmare" (as Arbitrator Williams characterized his calculations for FLSA purposes). Of course, so many years after Garcia, the County does not make any similar argument in the case at hand.
Arbitrator Williams' second reason for rejecting the Union's proposed 4-4 schedule was that he
found the County's arguments with regard to the workload and the problems with scheduling overtime and vacations convincing. . . . [I]t is clear to the arbitrator that the change . . . ought to lessen the problems of mandatory overtime.[FN]Currently, according to testimony given at the hearing, there are 23 dispatchers employed by the County. Changing the work week from 35 to 40 hours, gives the County approximately 6,000 additional hours to schedule on a yearly basis without incurring overtime (23 x 5 x 52 = 5,960). * * *
[FN] The arbitrator emphasizes, however, that the County's problems with overtime are only in part a reflection of the 4-4 schedule. Even on the 4-4 schedule, had the County been fully staffed at 30 instead of 23, overtime problems would have been substantially reduced. Moreover, the 4-3 work schedule awarded by the arbitrator will reduce overtime only if the number of employees either remains constant or increases consistent with additions to the workload.
(At pp. 10-11. The final italics are not in the original.)
There is no dispute that after Arbitrator Williams issued his award in October, 1987, the County returned to a 4-4 schedule, with scheduled 12-hour shifts, in July, 1990. That return happened because--in the words of the manager at that time--"that was the only way that we were going to be able to make it through the next 2 summer months with all the vacation requests we had." The County never left the 4-4 pattern from 1990 to the present, although the regularly scheduled length of shift changed from 12 hours to eleven.
In summary, this bargaining unit has been on some version of a 4-4 schedule since 1986 except for the period from November, 1987 until August, 1990, when it was on a 4-3 schedule.
Despite Arbitrator Williams' admonition (quoted just above), the number of Dispatchers did not remain constant or increase with the workload. Although the record includes only rough data about the change in total call volume over the last decade, C-COM added the City of Canby to its service area in 1997 and added the City of Gladstone in 2004. The limited data available suggests that from 1998 to 2002 the total police related calls increased by over 20%, the total fire/EMS calls increased by almost 17%; and the total incoming 911 and business calls increased almost by half (48%+). There has been no corresponding increase in the number of fully-trained Dispatchers. During FY 2003-2004, the number of Dispatchers ranged from 19 to 23 but was mostly about 20. At the time of hearing in February, 2005, there were 22 fully trained Dispatchers and four trainees.
Continuing problems of stress and understaffing led C-COM to commission a study in 1991.(5) It was performed by a local fire chief who had been on C-COM's User Board. The 1991 study found that turnover was one of the major problems at C-COM and found that the massive overtime was the first-listed reason for that turnover. But, the author noted (the italics are not in the original):
The shift configuration of four 10 hour days on and four off is considered by many to be the one bright spot in the whole situation. They get a mini vacation after four intense shifts. (Unless they work overtime.) It is important to maintain that shift configuration.
In the fall of 2003, only about a year ago, the overall stress level at C-COM got so high that the County brought in an outside consultant to investigate and make recommendations. (The individual selected had previously been involved as a facilitator in interest-based bargaining processes between the County and the Union and so had considerable prior experience and knowledge of the operation and of the interests of management and of the employees.) The consultant's findings about training and recruitment are chilling:
The environment at C-COM is not a welcoming environment. New hires often feel like they are a burden and in some instances are treated unfairly by their trainers and the other dispatchers. Management either is not aware of this treatment or do not know how to deal with these kinds of issues on a one-on-one basis.
* * * * *
New hires are questioning if this is the place they want to work. They are not respected or welcomed and sometimes feel they are the burden. When in fact they thought they had been hired to relieve the burden. Some trainees feel that they have been given ample training and support while others are being put on hold and they do not get any feedback as to why. This causes stress and no one seems to be holding managers, trainers or trainees accountable for performance.
* * * * *
Staffing continues to be an issue in C-COM. There is little confidence that this situation will change. The low staffing levels cause the obvious workplace issues such as 13 hour shifts, increased overtime and an increased workload. The feeling of not being able to keep up with the workload has increased stress and the sense of being worn out consistently.
The new trainees are feeling the stress of not being able to work at all of the positions but are not being trained and supported. In fact some people seem to be making sure trainees are not successful. A couple of the trainees think this is because some people want to keep the overtime and see the trainees as impacting the ability to work overtime.
The low staffing levels just continue to undermine the ability to implement and train people on new technology, support trainers in doing quality training, and support the employees in having family time.
The greatest worry is the fear of losing a life or the injury to a responder. After five years of struggling with this issue there is a feeling that nothing will change, causing feelings of despair, hopelessness and powerlessness.
* * * * *
* * * The trainees do not feel welcome or supported and do not know who to go to for support. The consequences are trainees not getting trained, signed off for years or they just simply leave. Many of the trainees mentioned the stressful work environment.
* * * * *
Trainees do not feel valued or welcomed to C-COM. When some trainers and coaches are forced to train they treat the trainees as if they are a burden. When forced to train it is felt that the trainers do not give 100% to the trainee. The other dispatchers see this impact on the trainees. Until they can get through training the trainees never feel as a part of the team and if there are not enough trainers to train them then they cannot get signed off, causing high stress and lower self esteem.
The first recommendation of the 2003 study was, "Increase qualified staffing levels."
Although C-COM continues to be critically short of Dispatchers, it has managed to increase the management staff substantially. In 1988, the only managers were the Director and a 911 Coordinator. Now there is a Director, an Operations Manager and three Operations Supervisors; in addition, C-COM is currently hiring (or replacing) a full-time Training Manager. C-COM has also added a simulation training room and will be expanding its internal Academy to include experience in dealing with simulated calls.
Minimum staffing levels. The dispatch operation runs around the clock, of course; but the workload is not level throughout the day and neither is the minimum staffing level required. Here are minimum staffing levels as determined by the County:
0100 to 0300 5 dispatchers
0300 to 1000 4 dispatchers
1000 to 1500 5 dispatchers
1500 to 0100 6 dispatchers
Multiplying the minimum number of dispatchers by the hours each minimum is in effect shows that a minimum staffing daywould require a total of 123 hours of dispatcher time, and a minimum staffing week would require 861 hours of dispatcher time. At 40 hours of straight time per week, 861 hours requires an absolute minimum staff of 21.5 dispatchers. That absolute minimum assumes a mathematically perfect work schedule in which the dispatch center is constantly staffed at exactly the required minimum. It also assumes that no dispatcher ever gets sick, or has an accident, or a family health emergency or child care emergency, or a car that refuses to start; and it assumes that no dispatcher ever takes any of the vacation time or leave time provided by the collective bargaining agreement.(6) Finally, the County's staffing minimums ignore the substantial increase in call volume over the weekends; and, unless the scheduling is really quite magical, even this rosiest of scenarios includes at least 15 lunch periods per day and 30 break periods per day during which the emergency workforce falls below the minimum safe levels on a daily basis (even assuming a better than perfect schedule under which 15, 8-hour employees are scheduled to cover the 123 hours per day required by the minimum staffing standards).
Of course, the existing work schedule is far from the mathematical ideal, and Dispatchers do get sick, have emergencies of their own, and take vacation time; so the overtime cost of the County's under-staffing of this unit is vast. Over half of the employees in the unit make more than 20% of their gross income in overtime; and, looking just at Dispatchers, that percentage is much higher. Overtime pay accounts for 40% or more of total compensation for about a third of the dispatchers in the unit.
Arbitrator Williams' reasons for preferring the 4-3 shift pattern in 1987 have lost their persuasive force over the years. The County has now had many years experience in administering a 4-4 work schedule with substantial FLSA overtime; and that administrative task--which the County painted as so daunting in 1987--is not even mentioned in the County's arguments against the 4-4 schedule today. Similarly, the County now makes no particular appeal to difficulties in scheduling overtime and vacations under the long-established 4-4 schedule, although those difficulties supported the other major argument with which the County convinced Arbitrator Williams in 1987.
Even more significantly, Arbitrator Williams' 1987 admonition in awarding the 4-3 shift pattern appears to have had little effect: "[T]he 4-3 work schedule awarded by the arbitrator will reduce overtime only if the number of employees either remains constant or increases consistent with additions to the workload." There is no dispute at all on this record that the workload has increased substantially since Arbitrator Williams' award in 1987 while the number of full-trained Dispatchers has not increased much if at all.
The parties built a record which addresses each of the factors set out in ORS 243.746(4); and I have carefully considered that entire record with respect to each of the factors listed in the statute. But the parties explicitly agreed at hearing that C-COM's ability to pay and the CPI (factors (b) and (d)) play no substantial role in this case.
Even comparability (factor (e)) takes a back seat to the parties' dispute over work schedules and the effect of the parties' respective work schedule proposals on the interest and welfare of the public. The parties agree on most of the comparables: Central Lane (EPEA), Salem/Willamette (PCEA), and Washington County (WCCCA).(7) Looking at top step compensation--which is a reasonable index point for these employees--and adjusting for PERS contributions, holidays and vacations, the County calculates the comparable annual compensation for Dispatchers for FY 2004-2005 to be about $52,000 compared to a C-COM's total compensation--with the County's proposed increase--of about $59,000.(8)
Although the parties disagree sharply about the costs of each other's proposals--and thus about the difference in costs--they agree that ability to pay ("fiscal constraint) is not a substantial factor.(9) The determinative factors are recruitment and retention and the interest and welfare of the public.
Recruitment, training and retention. The turnover numbers for this bargaining unit appear staggering at first blush. Between the beginning of 2000 and September, 2004, C-COM hired 21 new dispatchers (or dispatchers to be) and lost 27. Of those 27, five were eliminated during training (for reasons of performance), nine left voluntarily during training, eleven fully trained dispatchers left voluntarily, and one dispatcher was discharged for cause.(10) Part of that apparent turnover results from the fact that the training process is also an important part of the selection process.
Attracting and retaining qualified personnel--which is the statutory term--is a slightly complicated concept when applied to emergency dispatch units. The term "attract and retain" has the overall sense of getting non-employees into the workforce and keeping them there. It is the additional term "qualified" that complicates the picture in emergency dispatch units. Here, in a nutshell, is the process leading from non-employee to qualified dispatcher: (1) The County advertises open positions and does the usual paper screening of the applicants; (2) the Department selects the initial probationary hires from those who are qualified on paper; (3) the Department holds a six to ten week in-house academy for a group of new hires; (4) the new hires spend an additional two weeks in BPSSST training in Monmouth; (5) the trainee then begins an on-the-job training period under the close supervision of a fully trained dispatcher as coach. The trainee initially works a 4-4 schedule, on ten hour days, beginning in call-taking. When the trainee is adequate proficiennt in that part of a dispatcher's job, the trainee switches to a 5x8 schedule, working four days on police (or on fire or medical) and returning to the previously learned part of the job for the fifth day. As the trainee becomes proficient in each new area, that part of the job joins the fifth day refresher part of the trainee's schedule and he or she moves on to another specialty area.
The parties agree that in recent years only about a third of C-COM's new hires have completed the training process although the national average is about 70% successful completion. As far as this record shows, the shortest time in recent years between a trainee's initial hire and his or her release from trainee status has been just over a year; and the average is probably a year and a half to two years. Some have taken over a decade. At least one left after more than three years in trainee status. The process of "acquiring . . . qualified employees," then, really runs that entire length of time, because it is only after a new employee completes the training process that he or she can properly be declared "qualified."(11)
This move from trainee to qualified dispatcher is not a merely technical matter. The necessary dependence on on-the-job training means that every trainee spends his or her entire shift with a series of real emergencies on the other end of the phone. It is obviously not possible to throw a trainee into the workplace and leave the "teaching" to end-of-the-day reviews. There are lives at stake in these calls; and it would be all too possible for such a "postmortem" approach to training to be exactly that. Every trainee must work with a fully-trained Dispatcher coach; and a fully-trained dispatcher's productivity actually goes down--as the stress goes up--when he or she takes on a new trainee. The fully-trained dispatcher has to pay enough attention to what the trainee is doing to keep the trainee, working at the trainee's speed, from making serious mistakes, while the fully-trained dispatcher also tries to deal with at least some calls at the speed usual for the fully-trained. Thus understaffing, training, and the ultimate attraction and selection of "qualified personnel" are inextricably tied together.
Turning to retention, the average seniority among the 21 fully-trained Dispatchers is over 12 years. That is substantially better than the national average of five to seven years longevity. If the national average were applied here, this unit would require an average of almost four new fully-trained dispatchers per year in order to maintain its numbers at around 20; and it would require an average of almost six fully-trained dispatchers per year in order to hold its numbers at around 30, which is still less than the budgeted 33 positions. Even at the actual average seniority of 12 years, C-COM has to add an average of about two full-trained Dispatchers every year just to maintain its current critical understaffing. Keeping in mind the probable washout rate for trainees, those numbers translate into an initial hire rate that massively outstrips anything suggested by this record. In fact, quite apart from national averages, the record shows that at least two fully-trained dispatchers will very likely be retiring in 2005 and only one trainee will probably become fully-trained this year.
That probable net loss of one fully-trained dispatcher this year does not include one dispatcher who has promised to take early retirement if the County succeeds in changing the work schedule and another fully-trained dispatcher who has threatened to resign if the schedule changed to 4-3. Moreover, although the Director testified that there had been no adverse consequences to the prospect of a change to the proposed 4-3 schedule, a May, 2003 resignation letter to the Director made it clear that that possible schedule change was one of the reasons for that Dispatcher's departure. Finally, the record suggests that C-COM's 4-3 proposal cost C-COM its full-time trainer (who had a part-time job with the company that makes much of C-COM's software but had to choose one job or the other when faced with the prospect of a 4-3 schedule and chose to resign from C-COM).
On the other hand, the record offers no substantial support for any suggestion that the 4-4 schedule has had an adverse affect on retention; and, of course, the County has commissioned two separate studies that both concluded that the 4-4 schedule was a positive factor in recruitment and retention in the face of C-COM's chronic and serious understaffing.(12)
The County argues that the 4-4 schedule makes training more difficult. If the record supported that claim, that would weigh heavily in the County's favor because--as discussed above--training and recruitment are intimately related for this unit. The County's Training Manager testified that she had examined the training process, that dispatcher trainees are initially learning muscle memory skills, and that such learning thrives on constant repetition and is frustrated by four days of down time.(13) The actual Dispatchers who testified, however, did not support that claim on the basis of their personal experience. Moreover, this argument seems to be something of an afterthought on the part of the County, a support offered in interest arbitration but never before voiced in the bargaining process. Similarly, there were extensive discussions of scheduling during the negotiations for the prior, 2000 contract; and those discussions did not include a claim that the 4-4 schedule made training more difficult.(14) In short, it appears that the alleged adverse training consequences of the current 4-4 schedule are, at best, a tail trying in vain to wag the entire work schedule dog.
The bottom line with respect to the relationship between the parties' work schedule proposals and C-COM's recruitment and retention problems is this: Two prior studies, by consultants chosen by the County and intimately familiar with C-COM's operations, have concluded that the 4-4 schedule has a positive effect on retention in the face of C-COM's chronic understaffing. (2) A preponderance of the record weighs against the County's claim that the 4-4 schedule has any adverse effect on training (and thus on recruitment). (3) The County's very proposal of the abolition of the 4-4 schedule has already played a substantial role in the loss of two Dispatchers (one was the C-COM Trainer) whom C-COM could ill afford to lose; and--particularly in light of that record--the implementation of the 4-3 schedule would probably result in the loss of at least one or two more Dispatchers.
Finally (4), the County also argues that its proposed 4-3 schedule would result in great cost savings. That claim is almost certainly the real driving force behind the Company's work schedule proposal. But there is very substantial uncertainty over the extent of the County's financial savings in overtime costs over the life of this contract. Given the diminished size of the Dispatcher workforce, massive amounts of overtime will be required in the immediate future in order to meet minimum staffing requirements regardless of the work schedule configuration. And unless there are substantial changes in the County's recruitment and/or training process, the C-COM staffing crisis will continue at least throughout the period of the contract at issue here.
Much of the County's analysis showing the financial advantages of the 4-3 schedule is based on workforce projections that are entirely unrealistic during the course of this contract. For example, the County points out that overtime would decrease quite substantially at 26 fully-trained Dispatchers. (In fact, in theory there would be no intrinsic planned overtime with a staff of 24 Dispatchers on the County's proposed 4-3 work schedule.) But there appears to be no realistic prospect of C-COM getting to 26 Dispatchers during the life of the contract at issue here. Although the Director testified that she expects the Dispatcher staff to reach 28 before the end of this collective bargaining agreement, that expectation appears to be no more reasonable than her predecessors' similar expectations have been over the last decade and more. The staffing high water mark in the agency's history was at 27 just before the current Director took over in 1999. In fact, given the average length of the training period for new hires, the number of Dispatchers now in the training process, the past turnover rate, and the number of anticipated retirements, even 26 fully trained Dispatchers anytime in the near future looks very like a pipe dream.(15)
In short, the interest and welfare of the public absolutely demand, first, that there be no further deterioration in the Dispatcher staffing of C-COM and, second, that the very dangerous, decade-long understaffing of C-COM be brought to an end; and under the peculiar facts of this case AFSCME's proposed work schedule will serve those ends far better than C-COM's.(16)
Other issues. AFSCME also proposes additional contract language regulating the County's posting of overtime. The County is certainly correct in noting that none of the comparable employers have any similar language in their labor contracts; but there appears to be no dispute that the language AFSCME proposes accurately describes C-COM's long-established practice in this regard. The additional administrative burden of that proposed language, therefore, does not begin to balance the adverse retention and staffing consequences of the County's work schedule proposal.
Conclusion. A state of crisis may lose its emotional charge when the crisis lasts too long. Conditions that would be shocking over a short term can easily become part of the ordinary background situation if those conditions go on long enough. If C-COM were ordinarily staffed anywhere near its authorized complement of 33 dispatchers, then a sudden drop to a dispatch staff of just over 20 would surely catch the attention of the County managers and of the several agencies that contract for C-COM's services. Everyone involved would almost certainly see such a drop as an unacceptable hazard to public safety, demanding heroic measures to return staffing to a safer level. The fact that exactly that staffing situation has continued day after day and month after month for well over a decade appears to have deprived those conditions of their emotional charge; but C-COM's staffing level still presents an unacceptable hazard to public safety. The fact that this crisis has persisted for such a long term does not make it any the less shocking: For over a decade, every time a citizen of Clackamas County has called 911 because of an assault in progress, a burning house, or a dying child, there has been a good chance that the call would be fielded by a Dispatcher in his or her twelfth or fourteenth hour on the job, perhaps paying half of his or her attention to a trainee who was dealing with a call equally desperate.
The primary consideration for an arbitrator under the Oregon public sector interest arbitration statute is the safety and welfare of the public. In light of the slow-moving train wreck of C-COM's understaffing, no consideration presented in the record before me can even begin to compare with the compelling need to increase the Dispatcher staff of the agency. It is disheartening that neither party--and particularly the County--offers many proposals reasonably calculated to address that continuing crisis.(17)
Although the County now suggests that its proposed schedule change was designed to facilitate training--and thus help to ease the staffing crisis--that claim is not credible on the record before me. The fact that the County never offered that justification during negotiations strongly suggests that the argument is a makeweight for the interest arbitration process. The fact that the County's Training Manager lacked an intimate familiarity with the C-COM training process seems to be a monument to the County's neglect of this continuing hazard to the safety and welfare of the public. Although the County is the public body responsible for management of C-COM, C-COM's decade-long record of chronic and obviously hazardous understaffing suggests that C-COM has been a stepchild among the County's large family of agencies. Even Cinderella got more attention than this from her stepmother.
With respect to the specific issue before me under the statute, the bottom line comes to this: First, AFSCME's proposal provides slightly higher compensation, and C-COM desperately needs to attract more potential dispatcher trainees. Second--and far more significantly--the record provides virtually no evidence suggesting that the 4-4 schedule is a disincentive for current and potential dispatchers; and it offers substantial evidence that the 4-4 schedule is an attraction and that some current dispatchers would leave if it were eliminated. At the desperation staffing levels that C-COM can expect before the end of this calendar year, the loss of even a single fully-trained dispatcher would be a tragedy. If C-COM actually had 26 or 28 fully-trained Dispatchers, then the cost savings of the County's work schedule proposal might well be compelling; but C-COM does not have 26 or 28 fully-trained Dispatchers; and it is puzzlingly unrealistic of the County to offer a proposal whose appeal depends so heavily on the achievement of staffing levels which C-COM cannot realistically hope to achieve during the three-year period of the contract at issue.
In short, the interest and welfare of the public are clearly threatened by the shocking and chronic understaffing of C-COM's Dispatcher workforce. In the immediate near term, at least, that understaffing would probably be made worse by the County's proposed change to a 4-3 schedule. Therefore, AFSCME's proposal to continue the existing 4-4 schedule throughout the life of this contract better serves the interest and welfare of the public and must be awarded in this interest arbitration proceeding.
The parties' new contract shall include the language of AFSCME's last best offer as amended at the interest arbitration hearing.
Howell L. Lankford, Arbitrator
February 7, 2005
Representing the Association: Allison Hassler, Legal Counsel, AFSCME Council 75
Representing the County: Jeffrey P. Chicoine, Newcomb, Sabin, Schwartz & Landsverk, LLP
1. The unit contains Dispatchers (and Dispatcher Trainees), Shift Leaders, and "technical" employees, but the discussion below concentrates entirely on Dispatchers since theirs is the focal function of the bargaining unit and they are the largest group.
2. The parties both agree that the threshold judgment required for the consideration of other factors cannot be made in this case. I agree: the factors in paragraphs (a) to (g) provide sufficient evidence for an award, and the consideration of other factors is therefore not required or permitted by the statute.
3. In brief, the County proposes increases of 2.1% retroactive to July 1, 2003, 2.5% retroactive to July 1, 2004 and 2.5% on July 1, 2005. The County also proposes to move the entire wage schedule up one step effective January 1, 2005, and another step a year later. (The County also proposes an additional 2.5% increase when the staff reaches 28 fully trained Dispatchers; but the County concedes that is unlikely to happen any time during the period of this three-year contract.) AFSCME proposes 3% increases on July 1, 2003, 2004 and 2005 and a one step (5%) increase on July 1, 2003.
4. A second interest arbitration, in 1993, before Arbitrator John Hayduke did not include any proposals to depart from the 4-4 pattern which was then in effect.
5. The 1991 study was done before a substantial equipment upgrade was undertaken.
6. It also ignores the very substantial problem of maintaining minimum staffing numbers during the staff's required lunch breaks and rest breaks.
7. AFSCME proposes to add Portland as a comparable--and points out that the parties actually used Portland during two-party negotiations, along with Multnomah and Clark Counties. (AFSCME concedes that these three are probably not proper comparables under the terms of the statute.) Using Central Lane, WCCA, WVCC and BOEC as comparables, and looking at actual pay on July 1, 2003, AFSCME's numbers show that CCOM was about 2.5% behind comparable total compensation (including PERS, vacation and holiday pay and health insurance costs and any July 1 COLA increases for the proposed comparables).
8. Those numbers are somewhat artificially based on the County's 40 hour week proposal. There is no room for doubt, on this record, that this bargaining unit will continue to be grossly overtime-dependent throughout the life of this contract. (It is unfortunate that neither party included data about the overtime experience of any of the comparable employers.)
9. AFSCME costs the proposals in a fashion that puts the three-year total cost difference at about $27,000; and the County--taking quite a different approach--puts that number at more than $300,000. C-COM's chronic understaffing and its massive overtime requirements would present a real problem if this were the more usual sort of interest arbitration dispute in which compensation comparability was a main driving consideration. It is not at all obvious that a simple comparison in terms of the straight-time salary schedule income is appropriate when the bargaining unit employees in question choose and are required to put in the massive amounts of overtime that the C-COM Dispatchers do.
10. This number of voluntary departures of fully trained dispatchers does not count one who left and then returned. On a national average, about 30% of dispatcher trainees fail to complete their training program.
11. The County's Post-hearing Brief argues (at 29) that "Attracting qualified personnel is not and has not been an issue. There have been sufficient numbers of individuals meeting minimum qualifications in past and in current recruitments..." But there is an obvious problem with that claim: If we cannot really tell whether a new hire is qualified until he or she completes the training process, or not; and the County's training washout rate is about twice the national average; then either the training process or the initial input process is badly flawed.
12. Similarly, although the County may be right in claiming that the 4-4 schedule is not an obvious attraction for the initial recruiting of trainees, there is nothing at all in the record to suggest that the 4-4 schedule is a handicap in that part of the process.
13. The most interesting feature of that testimony is that the County's Training Manager apparently had not previously been involved in the design or implementation of the Department's training program. Yet it is hard to imagine what other County employees could have such a high overall training cost considering that the Department gets no return at all out of new hires for the up to three months of classroom training, gets a net negative return during the on-the-job training periods when the presence of a trainee is reducing the trainer's productivity, and then loses all of its initial investment in a substantial number of new hires who are let go during the on-the-job training process.
14. Also, if training problems were a significant part of the County's motivation, then the overall schedule change the County proposes seems to be far too broad a remedy for those problems: a proposal to adjust the work schedules of the trainees would appear to be the more attractive response if training schedule problems were really significant.
15. Much of the County's analysis of the benefits of its proposed schedule fall into this category. For example, the County's Post-hearing Brief (at 18) accurately recounts the testimony of the Operations Supervisor: "Using a four year analysis of historical work data, [the Operations Supervisor] concluded that a 4/3 schedule would cover all overtime with a staff of 32 dispatchers. By contract, a 4/4 schedule would require 38 dispatchers."
16. The facts of this case are peculiar in this regard. Ordinarily, a dispute such as this would demand careful analysis of the probable overtime cost consequences of the two contending work schedules. In light of C-COM's financial condition and its recruitment and staffing condition, however, those financial consequences pale.
17. The parties do propose to increase the additional pay of a fully-trained Dispatcher who agrees to coach a trainee.