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IA-16-01
In the Matter of a Dispute between BENTON COUNTY DEPUTY SHERIFF'S ASSOCIATION and BENTON COUNTY. Concerning the terms of the parties' 2001-2004 Collective Bargaining Agreement. IA-16-01
 
PROCEDURAL HISTORY
 
This interest arbitration arises under the Oregon Public Employees Collective Bargaining Act, Oregon Revised Statutes ("ORS") 243.650 et seq ("Act"). The parties to this proceeding are the BENTON COUNTY DEPUTY SHERIFF'S ASSOCIATION ("Association") and BENTON COUNTY ("County"). I was selected by the parties as the impartial arbitrator of this dispute in accordance with ORS 243.742. Pursuant to ORS 243.746 (4), I must select between the parties' last best offer packages based on criteria specified in the Act.
 
The evidentiary hearing in this matter was held April 11 and April 12, 2002, at the County's offices in Corvallis, Oregon. Prior to the hearing, the parties exchanged their last, best offer packages, as required by the Act. Each party had a full and adequate opportunity to call, examine, and cross-examine witnesses and to introduce relevant evidence during the evidentiary hearing. As the proceeding was not transcribed, my notes constitute the official record of the proceedings and testimony. The record was declared closed as of May 9, 2002, upon my receipt of a post-hearing brief from each party.
 
PERTINENT STATUTORY LANGUAGE
 
Oregon Revised Statutes 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) Comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities. As used in this paragraph, "comparable" is limited to communities of the same or nearest population range within Oregon. Notwithstanding the provisions of this paragraph, 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 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.
 
(5) Not more than 30 days after the conclusion of the hearings or such further additional periods to which the parties may agree, the arbitrator shall select only one of the last best offer packages submitted by the parties and shall promulgate written findings along with an opinion and order. The opinion and order shall be served on the parties and the board. Service may be personal or by registered or certified mail. The findings, opinion and order shall be based on the criteria prescribed in subsection (4) of this section.
 
(6) The cost of arbitration shall be borne equally by the parties involved in the dispute.
 
. . .
 
OPINION
 
As noted below, three of the issues addressed in the parties' last best offers are no longer in dispute. Specifically, the changes proposed in Article 1 - Recognition, Article 14 - Sick Leave, and Article 27 - Termination, are either unopposed or mutually acceptable by the parties. Accordingly, those three issues will be given no weight in the determination of which party's offer to adopt here.
 
The remaining disputed issues are Article 2 - General Provisions, Article 5 - Association Rights, Article 16 - Wages and Salaries, Article 17 - Fringe Benefits, and Article 22 - Retirement Program. Rather than considering each issue individually, Oregon law limits my authority to selecting the "package" offer that best meets the criteria specified in the Act. That is, I must select either the County's proposals or the Association's proposals as a "package"; I cannot pick and chose among the parties' positions on the issues, nor may I fashion some middle ground. To do this, I must analyze how each criterion applies to each of the issues in the competing packages.
 
ARTICLE 1 - RECOGNITION.
 
County's Offer: The County is seeking to move a section of the Agreement concerning the position of resident deputy from Article 17, which governs fringe benefits, to Article 1. However, the County is not seeking to modify the language of the provision.
 
Association's Position: The Association is not opposed to the County's proposal to move the resident-deputy provision from Article 17 to Article 1.
 
Analysis: As the Association is not opposed to the County's proposal, no further analysis is necessary.
 
ARTICLE 2 - GENERAL PROVISIONS.
 
County's Offer: The County seeks the following modifications of Section 2.1 of the Agreement, the so-called the zipper clause (added language underlined):
 
2.1. Zipper Clause. Nothing in this agreement is intended to preclude the County and the Association from meeting during the term of this agreement at the request of either party to discuss procedures for avoiding grievance and other problems and for generally improving relations between the parties; however, the County shall have the unqualified right to unilaterally modify any employment condition not covered by the terms of this agreement, and to do so without bargaining either the decision to do so or its impact on the bargaining unit. The County agrees that for the initial implementation of the "General Operating Manual" to bargain the mandatory subjects of bargaining and mandatory impacts.
 
Union's Offer: The Union opposes the County's proposed modification of Section 2.1 and instead offers that it be modified to read as follows (deleted language crossed out):
2.1. Zipper Clause. Nothing in this agreement is intended to preclude the County and the Association from meeting during the term of this agreement at the request of either party to discuss procedures for avoiding grievance and other problems and for generally improving relations between the parties. ; however, the The County shall have the unqualified right to unilaterally modify any employment condition not covered by the terms of this agreement, and to do so without bargaining either the decision to do so or its impact on the bargaining unit. subject to the statutory duties of notice and bargaining with the Association.
 
Analysis: In my judgment, the only statutory criterion that applies to this issue is the "interest and welfare of the public." Although the law dictates that this criterion be given "first priority," it does not attempt to define that phrase. However, the parties have thoroughly discussed the meaning of that term as refined by arbitrators in previous cases arising under the Act. It is therefore unnecessary to burden this decision with a lengthy discussion of that topic. Suffice it to say that arbitrators generally agree that the public's "interest and welfare" is best determined by applying the remaining criteria specified in the Act. Where, as here, those factors are inapplicable or inconclusive, it is generally accepted by arbitrators that it is in the public's interest and welfare to adopt the proposal that best provides the public with affordable services that are of sufficient quality to ensure adequate protection of persons and property. In my view, that end is best achieved where the parties have a stable and predictable relationship that minimizes conflict and does not undermine employee morale.
 
Zipper clauses are frequently included in collective bargaining agreements precisely because they are presumed to stabilize the parties' relationship by closing out bargaining and making the written contract the exclusive statement of the parties' rights and obligations. The County and the Association apparently accepted that proposition in the past as they included such a provision in their Agreement.
 
The burden of proof in interest arbitration generally rests with the party that is seeking some change in the status quo, and absent persuasive evidence to justify some significant change, the proposal that most nearly continues the existing terms and conditions of the Agreement is preferred. In this instance, the County's proposal retains the existing language of Article 2, deleting nothing and adding only one sentence dealing with the obligation to bargain over the initial implementation of the General Operations Manual. In contrast, it appears that the Association's proposal would fundamentally alter the zipper clause, removing the provision that permits the County "to unilaterally modify any employment condition not covered" by the Agreement and instead requiring notice and bargaining before any such change can be made. In essence, the Association's proposal would unzip the zipper, rendering the provision essentially meaningless. While the Association's position is understandable, in my judgment it is not supported by the statutory criteria that are controlling here.(1)
 
I therefore find that the statutory criterion of the interest and welfare of the public tends to support the County's offer regarding Article 2.
 
ARTICLE 5 - ASSOCIATION RIGHTS.
 
County's Offer: The County is seeking four changes to the current provisions of the Agreement governing the Association's rights:
 
5.9 Association Meetings. The County agrees to allow Association members time off from regularly scheduled working hours without loss of pay for the purpose of attending Association meetings provided:
 
. . .
 
B. A sufficient number of deputies necessary to cover emergency situations maintain minimum staffing will remain on the job. . . .
 
. . .
 
E. No deputies shall benefit by overtime for attending a meeting.
 
5.10 Use of County Equipment. County equipment may only be used for activities related to grievances. Association officers, stewards, and Association Council representatives may use County-owned equipment such as telephones, computers, electronic mail, copy machines, and facsimile machines for activities relating to grievance preparation.
 
5.1011. Policy Board. The BCSO will include the BCDSA in the creation, review, implementation and training for all BCSO policies and procedures (defined as BCSO Orders). The mechanism for this inclusion will be through the BCSO Policy Board. The BCSO management reserves the right to implement policy absent the agreement of the BCDSA representatives.
 
. . .
 
D. The Board will complete an annual a review of all BCSO General Orders at least once during the term of the Agreement.
 
Association's Offer: The Association seeks to maintain current language of Article 5.
 
Analysis: As with the previous issue, the question of the modification of the Association's Rights article does not match up particularly well with the statutory criteria. Of the factors specified in the Act, only the vague notion of the public's interest and welfare seems to apply here. In my judgement, that criterion tends to favor the County's position on this issue.
 
The Association's primary argument against the County's proposal is that the concerns voiced by the County were not raised during bargaining. In addition, it maintains that the County failed to offer any rationale during bargaining for its proposal to modify the existing language of Article 5. While that may be true, it is not an adequate basis for flatly rejecting an otherwise reasonable and justified proposal.
 
The County argues persuasively that it would be an inappropriate expenditure of public funds to pay overtime for employees to attend Association meetings. Similarly, the County is well within its rights to prohibit employees from using County equipment such as telephones, computers, photocopy machines, and faxes, for purposes unrelated to County business. Such nonbusiness use of County equipment is of no benefit to the public and arguably results in additional costs to the taxpayers. The County's proposal would continue to permit the use of its equipment for grievance processing, which is a reasonable and proper accommodation of the Association's and employees' legitimate needs to use County equipment. Moreover, because the use of such equipment arguably enhances the efficiency of the grievance procedure, it clearly serves the public interest in maintaining labor peace through the prompt resolution of disputes.
 
Finally, the two remaining changes to Article 5 proposed by the County are of little significance, in my view. The suggested change regarding the number of deputies who must remain on duty during Association meetings from sufficient to "cover emergency situations" to sufficient to "maintain minimum staffing" appears to be little more than clarification of a vague standard. While the proposed change regarding the frequency of the parties' joint review of the Sheriff's Department's General Orders is de minimis, it is nevertheless appropriate in view of the anticipated duration of that process.
 
I therefore find that the statutory criterion of the interest and welfare of the public tends to support the County's offer regarding Article 5.
 
ARTICLE 14 - SICK LEAVE.
 
County's Offer: The County is seeking minor changes to the language governing the granting of sick leave, the coordination of sick leave with workers' compensation, and other insignificant aspects of Article 14.
 
Association's Position: The Association states in its hearing memorandum that it sees no justification for the changes to Article 14 sought by the County. However, it concedes that the issue will not have significant impact on the Association or the community at large.
 
Analysis: The Association has not seriously challenged the reasonableness of the County's proposal on this issue. Accordingly, no further analysis is necessary here.
 
ARTICLE 16 - WAGES AND SALARIES.
 
County's Offer: The County proposes that wages for bargaining-unit employees be increased as follows:
 
2001-2002: 3% across-the-board increase effective the first pay period following signing of the parties' new Agreement, plus a lump-sum payment to each member of the bargaining unit employed as of the signing of the successor Agreement, equal to the employee's earnings (base salary and overtime) from 7/1/01 until the effective date of the 3-percent across-the-board increase.
 
2002-2003: 2.5% across-the-board increase effective 7/1/02.
 
2003-2004: 2.5% across-the-board increase effective 7/1/03, less a reduction of 6 percent effective when the County begins paying the employees' contribution to PERS (see Article 22, Retirement, below).
 
Association's Offer: The Association seeks the following increases in wages:
 
2001-2002: All wages shall be increased by 3.5 percent effective 7/1/01.
 
2002-2003: All wages shall be increased by 3.25 percent effective 7/1/02.
 
2003-2004: All wages shall be increased by 3.25 percent effective 7/1/03.



Analysis: As noted by the Association in its closing brief, the wage proposals put forth by the parties are reasonably close. The Association seeks a 10-percent increase during the three-year term of the Agreement, while the County has offered an eight-percent increase during that period. The real sticking point appears to be the County's proposal regarding Article 22, under which wages would be reduced by six percent when the County begins paying both its contribution and the employees' contribution to PERS beginning January 1, 2004. Although much of the argument around the appropriate wage increase is muddled by reference to the retirement dispute, in my opinion the two issues must be separated for proper analysis. Accordingly, Article 22 will be dealt with separately and will not be considered in determining the wages that should be paid under Article 16.
 
Several of the statutory criteria are arguably applicable to the wage issue: the reasonable financial ability of the County to meet the costs of the contract; its ability to attract and retain qualified personnel; the overall compensation received by unit employees; comparison of the unit employees' overall compensation to that received by employees doing similar work in other jurisdictions; the movement in the consumer price index; and, of course, the interest and welfare of the public. Each of these factors is addressed separately below.
 
Financial Ability of the County. The County argues persuasively that it is facing significant fiscal problems. Sheriff Jim Swinyard testified that a trial balance showed a need to reduce the Department's 2001 - 2002 budget by $400,000, and that he will be required to cut an additional $460,000 from the Department's 2002 - 2003 budget to meet anticipated shortfalls in County revenues. Moreover, Sheriff Swinyard testified that the Department has been compromised by the failure of the voters to approve funds for a new jail, which has forced the County to contract with other agencies to house prisoners. While Sheriff Swinyard conceded on cross-examination that he is not claiming an inability to meet the cost of the Association's demands, he pointed out that doing so would force reductions in other services.
 
Sheriff Swinyard's assessment of the County's fiscal situation is particularly credible as it is consistent with national financial trends, particularly in the wake of the September 11 disaster. Moreover, there is simply no credible evidence in this record on which to question Sheriff Swinyard's testimony. Absent such evidence, I find that the ability-to-pay criterion tends to support the County's position on wages.
 
Ability to Attract & Retain Qualified Personnel. Where there is evidence that an employer has difficulty attracting a sufficient number of qualified applicants to fill vacant positions, or where the record shows that a significant portion of the bargaining unit has resigned to accept similar employment elsewhere, it may be assumed that salaries paid by the employer are below market rates. The anecdotal evidence presented by the Association is not persuasive. Moreover, the County argues convincingly that its turnover rate is low and comparable to other sheriff's departments in Oregon. Although the weight of the credible evidence tends to support the County's position, the record is ultimately inconclusive with respect to this criterion. I therefore conclude that it is of little relevance here.
 
Overall Compensation. Neither party cites the overall compensation received by bargaining unit employees as justification for its position. Accordingly, it is of no relevance here except for purposes of comparisons with other agencies, as discussed below.
 
Comparisons to Similar Employees in Comparable Communities. Oregon law is unique in that the legislature has by statute limited comparisons for purposes of determining the appropriate overall compensation to be paid to the employees involved in the interest arbitration proceeding. The Act provides in Section 243.746 (4) (e) that such comparisons must be limited to "communities of the same or nearest population range within Oregon." Although "population range" is not defined in the Act, it is reasonable to assume that all Oregon counties with a population of approximately 50 percent more or less than Benton County would fall within that limit. Although the statue does not address the use of the more traditional labor-market analyses in such determinations, neither does it specifically preclude the consideration of such factors within the population range. It is thus reasonable to give greater weight to those counties within the allowable population range that compete in the same general labor market as Benton County for the hiring and retention of employees. However, it is clear that the Act does not permit an arbitrator to rely solely on a labor-market analyses.
 
Both parties have presented comparisons to justify their respective offers. Not surprisingly, these analyses differ, and each party has pointed out flaws in the other's data and reasoning. The Association presented two analyses, one including all Oregon counties within the population range and a second limited to counties along the I-5 corridor, which are presumably within the same labor market as Benton County. The latter analysis is entitled to little weight since it ignores the statutory mandate to include all comparable communities within the same population range. The County also presented two comparisons including all Oregon counties with a population 30 percent greater or less than Benton County, one of which adds two counties with populations that are slightly beyond that range but which are geographically close to Benton County and thus within the same general labor market.
 
The County's comparisons demonstrate that with the adoption of its offer, bargaining-unit employees will receive compensation that is above the average paid to similarly situated employees of the comparison agencies. More importantly, I agree with the County that the Association's comparisons are severely flawed in that the Association chose to compare the compensation received by unit employees for 2000 - 2001 with the compensation received by employees of comparison agencies for the 2001 - 2002 contract year. That is, the Association's comparisons ignore the increase that its members will receive for 2001 - 2002, which will be at least 3 percent, a difference of $109 per month. As argued by the County, that flaw grossly distorts the comparisons, resulting in an apparent gap that is inconsistent with the facts. As shown below, when the Association's comparisons are adjusted to include the County's offer of a 3-percent increase for 20001 - 2002, the data show that unit employees will receive compensation that is above the average of the comparison counties at every level.(2) In view of this, the Association's argument that the County's comparisons improperly include "costs" that are not "received" by employees is irrelevant.
 
The Association's comparison data (Association Exhibit 14),(3) when adjusted to include the County's offer of a 3-percent increase to be effective upon ratification of the Agreement and paid retroactively to July 1, 2001, are summarized as follows:
 
Years of
Service
Benton County, Intermediate CertificateAverage, Intermediate CertificateBenton County, Advanced CertificateAverage, Advanced Certificate
5$3,457$3,243$3,548$3,311
10$3,457$3,395$3,548$3,466
15$3,457$3,422$3,548$3,492
20$3,457$3,449$3,548$3,519
 
I therefore find that the comparison of the overall compensation to be received by unit employees with that received by similarly situated employees of other Oregon counties within the same population range supports the County's offer.
 
Consumer Price Index. Data in this record show that the National Consumer Price Index ("CPI") increased approximately 2.8 percent from July 1, 2000, which was the date of the last across-the-board salary adjustment for bargaining-unit employees, until July 1, 2001, which will be the effective date of the first increase under the successor Agreement. Although the proposals of both parties exceed that amount, movement in the CPI tends to favor the offer that it most nearly equals. Accordingly, I find that this criterion supports the County's offer. Moreover, in view of this data, and particularly considering the Act's mandate that I consider the CPI, the Association's anecdotal evidence concerning the purported high cost of living in the Corvallis area is unpersuasive if not irrelevant
 
Interest & Welfare of the Public. As noted above, it has been generally accepted by arbitrators that under Oregon law, the interest and welfare of the public is to be determined primarily by reference to the remaining criteria specified in the Act. Since I have found that the relevant criteria tend to support the County's position on wages, it follows that the primary criterion of the interest and welfare of the public also supports the County's wage offer.
 
ARTICLE 17 - FRINGE BENEFITS.
 
County's Offer: The County proposes increasing its share of the employee's health, dental, and vision insurance premiums from the current 80 percent to 90 percent, to be effective on the 15th of the month following the month in which the successor Agreement is executed. It also seeks to eliminate the medical insurance retirement option (i.e., partial payment by the County of insurance premiums for qualified retired employees), but only for bargaining-unit members hired after the execution of the new Agreement.
 
Association's Offer: The Association also proposes increasing the County's share of the employee's health, dental, and vision insurance premiums from the current 80 percent to 90 percent, although it seeks to make that increase retroactive to July 1, 2001. The Association seeks to maintain the current provision regarding the medical insurance retirement option for all qualified bargaining-unit employees.
 
Analysis: The only significant difference between the parties' offers regarding fringe benefits is the effective date of the change to the 90/10 option, and the continuation of the medical insurance retirement option. The record marginally supports the Association's position on both questions.
 
As for the 90/10 option, the issue is which party should pay the 10-percent difference between the 20 percent of the premium now paid by employees and the 10 percent they will pay under either party's offer. The County has offered no persuasive evidence or testimony to support its position on this question. Moreover, while the amount involved may be relatively small for any individual employee, this benefit is clearly part of the total compensation received by employees. It is thus part of the comparisons relied on by the parties to justify their respective offers. Since those comparisons are based on an effective date of July 1, 2001, it stands to reason that all economic benefits included in the comparison should be retroactive to that date, provided that it is reasonably possible to do so.
 
As for the medical insurance retirement option, the County proposes that this benefit not be available to future employees, although it offers to continue the benefit for current unit employees (i.e., to "grandfather" current employees). The Association maintains that the County has offered no support for its proposal. It also points out that the initial savings to the County would be a mere $3,000. In the Association's view, rather than being based on any articulated policy, the proposal is based merely on the acquiescence of other bargaining units to the change.
 
In support of its offer, the County argues that even though the immediate savings from the implementation of its proposal would be small, reasonable projections show that a huge unfunded liability will result if the medical insurance retirement option continues to be available to all bargaining-unit employees. However, there is no persuasive evidence in the record to support that assertion. Although the County presented a document purporting to demonstrate the long-term cost of the medical insurance retirement option, my notes of the hearing show that no testimony was elicited to explain or support that analysis. Accordingly, it is entitled to very little weight here.
 
As correctly argued by the Association, the County bears the burden of proof on this issue since it is seeking to modify the status quo. In the absence of persuasive supporting evidence, I must conclude that the County has not met that burden. Accordingly, I find that statutory criteria do not support the County's offer regarding Article 17.
 
ARTICLE 22 - RETIREMENT PROGRAM.
 
County's Offer: The County proposes that effective January 1, 2004, it begin paying both the employees' and the employer's contribution to the Oregon Public Employees Retirement System ("PERS"). As noted above, the County also proposes that upon implementation of that proposal, salaries for all bargaining-unit employees be reduced by 6 percent to offset its cost of assuming the contribution to PERS currently paid by bargaining-unit employees.
 
Association's Offer: The Association seeks to maintain the current language of Article 22, under which unit employees pay their own contribution to PERS.
 
Analysis: Although the County suggests that its proposal to begin paying the employees' contribution to PERS in exchange for a 6-percent reduction in salaries is essentially a wash for affected employees, I am not convinced. As correctly argued by the Association, the reduction in an employee's base pay rate, even though arguably offset by a reduction in the employee's contribution to PERS, necessarily impacts any benefit based on salary. If the County's proposal were adopted, bonuses for special assignments or hazardous duty, overtime, vacation, holiday and sick pay, workers' compensation reimbursements, retirement contributions, unemployment compensation, social security, and other wage-driven benefits would be reduced by 6 percent without any offsetting gain to the affected employee. Moreover, as pointed out by the Association, the impact of the change would be greater than 6 percent since the current deduction for the employees' PERS contribution is pre-tax. The Association asserts persuasively that such a reduction in earnings for extra duty would have a substantial negative impact on employees' morale. Indeed, the County concedes in its post-hearing brief that the employees' concerns "are grounded in accurate economic analysis."(4)
 
In contrast, the County's reasons for the proposed change are difficult to understand. Apparently it believes it will save money, perhaps because of the reduction in overtime and other benefits discussed above, although that contention is not well explained in this record. Moreover, the County acknowledges that the change would have a disparate impact on unit members, favoring more senior employees while newer employees would suffer "a greater difference in pension benefit over time as a result of the rollback."(5) Such disparities in benefits unquestionably undermine employee morale.
 
The County's offer regarding Article 22 is not supported by the evidence in this record. Moreover, it would have a negative affect on the economic analysis accepted above, as well as on employee morale. I therefore find that the County's proposal regarding Article 22 is not in the interest and welfare of the public.
 
ARTICLE 27 - TERMINATION.
 
County's Offer: The County proposes that the successor Agreement cover the period of July 1, 2001, through June 30, 2004.
 
Association's Offer: The Association also proposes that the revised Agreement remain in effect through June 30, 2004.
 
Analysis: Since the parties both propose the same term for the revised Agreement, no further analysis is necessary.
 
CONCLUSION
 
Having carefully reviewed and weighed all the testimony and evidence presented at the hearing, and after considering each of the parties' arguments raised in the parties' briefs, it is my conclusion that, on balance, the record supports adoption of the County's last best offer. When analyzed in light of the controlling statutory criteria specified in the Act, the record tends to support the County's position as to Articles 1, 2, 5, 14, 16, and 27, and the Association's position on Articles 17 and 22. Accordingly, it is my judgment that the Act mandates adoption of the County's last best offer.
 
AWARD
 
The parties shall adopt the County's last best offer.
 
It is so ordered.
 
R. DOUGLAS COLLINS, Arbitrator
 
Dated: June 9, 2002, Los Angeles, California
 
APPEARANCES
 
For the Association: Rhonda J. Fenrich, Attorney, Garrettson Goldberg Fenrich & Makler
 
For the County: Candace Ludtke, Sr. Labor Relations Consultant, Local Government Personnel Institute
 
1. The Association argues that its position is supported by comparisons to other public agencies. However, I note that the statutory criterion concerning such comparisons is limited to compensation. Although comparisons of contractual language might arguably fall within the ambit of the "other factors" criterion, the Act specifically precludes the use of such factors if, in the judgment of the arbitrator, the other statutory factors "provide sufficient evidence for an award."
 
2. It should be noted that the Association's comparisons subtract the amount contributed by the employee to PERS. Accordingly, the County's proposal regarding Article 22 would have no net impact on these comparisons.
 
3. The Association's comparisons include the following Oregon counties: Coos, Josephine, Klamath, Polk, Umatilla, and Yamhill.
 
4. County's post hearing brief at page 11.
 
5. Id.