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IA-10-02
IN THE MATTER OF ARBITRATION BETWEEN TEAMSTERS LOCAL UNION 223 v. WALLOWA COUNTY SHERIFF'S DEPARTMENT. IA-10-02.
 
I. INTRODUCTION
 
The undersigned arbitrator was selected by the parties to resolve an interest arbitration dispute. The selection was made in accordance with the procedures set out in ORS 243.746.
 
Teamsters Local Union 223 (Union) is represented by Michael J. Tedesco, Attorney at Law. Wallowa County Sheriff's Department (County) is represented by Patrick J. Mosey, Attorney at Law. The parties decided to present the single issue in dispute by submitting simultaneous, written arguments in lieu of a hearing. Written arguments were received by the arbitrator on July 25, 2002 and the hearing was closed on that date. Because of the schedule of the arbitrator and counsel for the parties, it was agreed that my award would be mailed on September 14, 2002.
 
II. ISSUES
 
The only issue in dispute involves the treatment of compensatory time. Suffice it to say, the County wants to retain current contract language whereby employees are paid for overtime or given compensatory time off at time and one-half at the Sheriff's discretion. The Union, on the other hand, proposes language whereby compensatory time may be used upon mutual agreement of the employee and the County.
 
A. Current Contract Language
 
"At the Sheriff's discretion, employees will be paid for overtime or given compensatory time for overtime at the rate of time and one-half (1½) their regular hourly rate at one-quarter (¼) hour increments. Consistent with state and federal law, compensatory time must be scheduled by mutual agreement or at the discretion of the employee's supervisor if mutual agreement cannot be reached."
 
B. The Union
 
The Union proposes to amend Section 5.3 to read as follows:
 
"1. Employees shall be paid overtime at the rate of time and one-half (1½) times their regular rate. Overtime shall be calculated in one-quarter hour (¼) increments.
 
2. The Association and County agree that compensatory time may be accrued in lieu of paid overtime, at the mutual agreement of the employee and County. It is the intent of this article to comply with all federal and state regulations in effect regarding compensatory time.
 
3. Compensatory time may be used upon mutual agreement of the employee and the County. Reasonable notice of an employee's intent to use compensatory time shall be required, however, timeliness of notice may not be sole criteria used by the County to deny such usage."
 
The Union contends its proposal is reasonable and should be awarded by the arbitrator.
 
This case is somewhat unique because it is not necessary to isolate the interest and welfare of the public factor from the other statutory criteria set out in ORS 243.746(4). Simply put, this case turns on the interest and welfare of the public; the other statutory factors need not be considered.
 
The County wants the right to require that all overtime compensation be paid in the form of compensatory time. According to the County, by paying all overtime compensation in the form of compensatory time it will save money because it will have to pay less cash. The County contends this approach is necessary because it is financially strapped.

Unfortunately, the County's rationale is flawed and its proposed approach constitutes very bad public policy that is not in keeping with the interest and welfare of the public. This is so because under accepted accounting practices, a local governmental entity must account for all money used as a liability. What this means is that when the books are balanced and the budget is passed, compensatory time, much like vacation time, must be shown as a liability. To do otherwise would create an unfunded liability and put the local government into a deficit situation. For a local governmental entity to place itself in a deficit situation violates state law. More to the point, it would be against the interest and welfare of the public. Whether the time is paid as overtime or compensatory time is completely irrelevant for budgetary purposes.
 
Moreover, the liberal use of compensatory time creates more problems than it solves. This is so because when it becomes necessary to call in an additional officer to replace an officer of on compensatory time, the County ends up paying overtime twice, making its budget problems worse rather than better. The only conceivable way the County's scheme could work would be in a situation where an officer took compensatory time and was not replaced. However, to do so would not be in the public interest because given current bare bones staffing, the end result would be to reduce some shifts to zero.
 
On the other side of the coin, the Union's proposal constitutes a reasonable compromise because it would keep the use of compensatory time on a mutually agreed basis. This would be in accordance with federal law and applicable regulations. 29 USC § 207(o), 29 CFR 554.23(2).
 
Finally, as previously indicated, the secondary factors set out in ORS 243.746 do not apply. It follows that the sole criterion that applies is the interest and welfare of the public. Clearly, it is against the interest and welfare of the public for a public employer to engage in creative accounting, which is precisely what the County wants to do with compensatory time.
 
C. The County
 
The County proposes to retain current contract language whereby the decision to pay overtime or give compensatory time is at the discretion of the Sheriff.
 
For the Sheriff, the issue is a practical one and of no particular significance philosophically. In the Sheriff's view, if the County were forced to pay overtime straight out, given current financial restraints, at least one deputy position would have to be eliminated. Such a result would not be in the interest and welfare of the public.
 
The Union contention that compensatory time actually costs more than paid overtime may have some merit west of the mountains, but it does not apply in Wallowa County. The reality is that sheriffs and undersheriffs in small, east of the mountain jurisdictions function as working supervisors. Consequently, when an emergency arises, these working supervisors provide the necessary cover or the department simply does without. There is no compounding effect as the Union suggests.
 
The second piece of the compensatory time puzzle is the Sheriff's continued ability to choose when employees take compensatory time off. The Union wants to end this practice, regardless of the consequences. However, the Supreme Court has made it very clear that employers have the right to require employees to use compensatory time so as not to place an undue fiscal or other burden on the public sector.
 
Contrary to the Union's arguments, the factor of comparability also applies. In this regard, the other two (2) County bargaining units have similar language in their collective bargaining agreements. The same is true of other external comparators east of the mountains (i.e., Harney County, Grant County, and Central Point).

Finally, the consensus among arbitrators is that the party seeking to change long standing contractual practices must be able to show by convincing evidence that such practice should be changed. Stated differently, "if it ain't broke, don't try to fix it."
 
D. Analysis
 
At times the well worn lexicon "if it ain't broke, don't fix it" is overrated. After all, if the moving party, i.e., the party seeking to amend existing contract language, comes forward with a rational basis for amending current contract language, that rationale should be adopted. However, in this case, the well worn lexicon appears to apply because, creative accounting arguments not withstanding, the Union did not come forward with any evidence that the Sheriff has abused his discretion with respect to compensatory time. To the contrary, the Sheriff understandably wants to retain the discretion he has had in the past to require compensatory time when he schedules officers. As the County correctly observes, the use of overtime in this County is different than that of larger jurisdictions west of the mountains because more often than not non bargaining unit personnel are used to cover when officers are not available. What this means is that the County is not subject to a compounding effect when officers on compensatory time have to be covered by someone else and, in fact, the County may actually save money. Under these circumstances, I must agree with the County that its proposal to retain current contract language intact best serves the interest and welfare of the public.
 
At the risk of overkill, the factor of comparability, to the extent relevant, also supports the County's position. In this regard, collective bargaining agreements covering the County's other bargaining units contain similar language.
 
E. Award
 
Adopt the County's Proposal.
 
Respectfully submitted this 13th day of September 2002.
 
George Lehleitner
 
Interest Arbitration
 
Representing the Union: Michael J. Tedesco, Attorney at Law
 
Representing the County: Patrick J. Mosey, Attorney at Law