|In the Matter of the Interest Arbitration Between CRIMINAL INVESTIGATORS ASSOCIATION and STATE OF OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES on behalf of the DEPARTMENT OF JUSTICE. IA-18-03.
This matter of interest arbitration is before Ronald L. Miller pursuant to ORS 243.746. The arbitration hearing was held on September 30, 2004, in Salem, Oregon. Mr. Daryl S. Garrettson represented the Criminal Investigators Association (CIA or Association). Mr. Herbert L. Harry represented the State of Oregon, Department of Administrative Services (State) on behalf of the Department of Justice (DOJ, Agency, Employer).
Neither party issued any challenge to the substantive arbitrability of the dispute. The hearing proceeded in an orderly manner without objection from either party with regard to relevant administrative rules for conducting such hearings. There was a full opportunity for the parties to submit evidence, to examine and cross-examine witnesses, and to argue the matter. All witnesses testified under oath as administered by the arbitrator. The arbitrator tape-recorded the proceeding as an extension of his personal notes. This tape recording will be retained by the arbitrator in accordance with relevant administrative rules.
The parties submitted the matter to the arbitrator on the basis of evidence presented at the hearing, expense and revenue data provided by the State on October 28, 2004, and post-hearing briefs. The post-hearing briefs were submitted in a timely manner. The arbitrator closed the record on November 3, 2004.
In arriving at a decision in this matter, the arbitrator weighed and considered, where applicable, the following criteria set forth in the Oregon Public Employees Collective Bargaining Act.
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 subsection, "comparable" is limited to communities of the same or nearest population range within Oregon. Notwithstanding the provisions of the subsection, the following additional definitions of "comparable" apply in the situations described as follows:
(A) For any city with a population of more than 325,000, "comparable" includes comparison to out-of-state cities of the same or similar size;
(B) For counties with a population of more than 400,000, "comparable" includes comparison to out-of-state counties of the same or similar size; and
(C) For the State of Oregon, "comparable" includes comparison to other states.
(f) The CPI-All Cities Index, commonly known as the cost of living.
(g) The stipulations of the parties.
(h) Such other factors, consistent with subsections (a) to (g) of this section as are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. However, the arbitrator shall not use such other factors, if in the judgment of the arbitrator, the factors in subsections (a) to (g) of this section provide sufficient evidence for an award.
This interest arbitration proceeding between the State and the Association concerns unresolved terms of a successor collective bargaining agreement. The Association´s bargaining unit is unique in Oregon; it consists of fourteen (14) criminal investigators and criminal financial investigators assigned to the Criminal Justice Division of the Department of Justice (DOJ). The investigators participate in investigations of serious criminal activity involving organized crime, election fraud, public corruption, and capital murder cases. The investigators are Certified Police Officers (sworn) with substantial specialized training/education and extensive investigative experience.
The Department of Justice employs 1,205 personnel, including the 14 investigators and approximately 210 attorneys. The DOJ is not a police agency; rather it operates as a quasi-public law firm which bills for the services of its attorneys and investigators within a state-wide jurisdiction.
This proceeding involves three language issues that remain unresolved between the parties; the three issues are proposed by the Association. The primary issue concerns work schedules, work day, work week, and overtime. Additionally, the Association proposes new language for paid lunch and for a so-called "evergreen" clause. Salary and insurance issues, most commonly the core disputes in interest arbitration, are not involved in this proceeding. The parties have agreed to an economic package, which includes a freeze on merit step adjustments, a two-year cost of living freeze, an increase in the employer´s health insurance contribution, and a one-time workload adjustment payment to certain bargaining unit members. The economic package is part of each party´s Last Best Offer.
SUMMARY OF LAST BEST OFFER PACKAGES
In addition to all tentative agreements reached by the parties:
(1) In Article 13 of the collective bargaining agreement, proposed language changes would establish the normal work week as five (5) consecutive work days (Monday through Friday) followed by two (2) consecutive days off (Saturday and Sunday).
New language would establish the normal work day as nine (9) hours (8:00 a.m. to 5:00 p.m.); the work day would normally include a one (1) hour unpaid lunch period.
New language would require that any work outside the work day and work week would be paid on an overtime basis. With supervisory approval, an employee could voluntarily adjust his or her work schedule and thereby avoid the payment of overtime (within the normal 40 hour work week).
Language would be deleted that gives the State sole discretion to regulate the use of overtime and to adjust an employee´s work schedule in order to avoid the payment of overtime.
Modified language would include paid sick leave for purposes of computing overtime.
The Letter of Agreement - Alternate Schedules, amended to the expired collective bargaining agreement, would not be renewed.
(2) New language in Article 20 would provide for lunch reimbursement (paid lunch) if an employee is required to travel outside the County of his or her regular work site, and spends greater than one-half of his or her scheduled work day.
(3) New language in Article 36 would continue the collective bargaining agreement in full force, after its expiration date, during the period of negotiations for a successor agreement. Under current employment law, provisions of a collective bargaining agreement are continued in effect, except for a grievance procedure and a fair share provision.
No language changes are proposed for the successor collective bargaining agreement (except for date changes in Article 36), and the Letter of Agreement - Alternate Schedules would be maintained.
SCHEDULING AND OVERTIME
Notwithstanding the Association´s contention that a paid lunch is a matter of equitable treatment, both parties give the scheduling issue prominence. Therefore, the selection of a Last Best Offer package is based on the scheduling issue. A summary of the current procedure for setting and changing work schedules is presented, followed by the Association´s proposed revisions.
During recent years, when investigators have been paid for overtime work, the large majority of those payments have been funded by grants (Association #12). For example, in 2003, 93% of overtime payments came from grants; during 1 January through 31 August 2004, 75% of overtime payments were externally funded. Grant funding for overtime is project specific; funds cannot be used beyond the scope and terms of the particular grant. Management has not denied investigators access to grant-financed overtime, when available. The parties agree; when there have been no grant funds to be charged, overtime payments have been kept to a minimum. The Department of Justice acknowledges that it is "overtime averse." Neither the DOJ´s nor the Association´s Last Best Offer would directly affect grant-financed overtime.
Current Scheduling Procedure
Article 13 of the collective bargaining agreement and the attached Letter of Agreement - Alternate Schedules (LOA) establishes provisions for scheduling work and the payment of overtime. The LOA states in part, "The parties agree to implement the following alternate scheduling language on a pilot basis for the remainder of the 2001-03 term."
A work week consists of seven (7) consecutive calendar days commencing at 12:01 a.m. Monday and ending at 12:00 midnight the following Sunday, and normally includes five (5) consecutive work days followed by (2) consecutive days off.
Overtime hours are hours worked beyond forty (40) in any work week. Compensation for each overtime hour accrues at the rate of one and one-half (1 ½) times the equivalent of the employee´s hourly rate.
The Employer has the sole discretion to regulate the use of overtime. After an investigator works forty (40) hours during a work week, management may require the investigator to take the remainder or a portion of the work week off. An investigator may, after working forty (40) hours during a work week, request to take the remainder of the work week off.
On Thursday, an investigator prepares and submits a proposed schedule for the following work week. The investigator´s supervisor may modify the proposed schedule; an approved schedule would be set by the end of work on Monday.
Once set, the supervisor may adjust the schedule provided the investigator is given ten (10) hours advance notice of the adjustment or in the event of an emergency. Such adjustment (except for an emergency) may be for up to two (2) hours before the employee´s start time and/or two (2) hours after the end time. Time worked in excess of the original set hours of work up to a total of four (4) hours in any one (1) day may be deducted from the investigator´s last scheduled day of work within the work week.
The process of adjusting an approved schedule within a forty (40) hour work week is called "flexing"; an investigator may voluntarily flex or be required to do so by his/her supervisor.
If less than ten (10) hours advance notice is given (except for an emergency), the investigator would receive overtime pay.
Nothing prohibits an employee from requesting or mutually agreeing with his/her supervisor to adjust the normal work week or work day after being set.
The Association would remove the LOA from the collective bargaining agreement and would significantly change provisions in Article 13.
A work week would normally include five (5) consecutive work days, Monday through Friday, followed by two (2) consecutive days off, Saturday and Sunday.
An investigator´s normal work day would consist of nine (9) hours, 8:00 a.m. to 5:00 p.m., including a one (1) hour unpaid lunch period.
An investigator who works outside the hours of a normal schedule would be paid at the overtime rate for all such hours.
An investigator may voluntarily adjust ("flex") his/her hours in the work week with the approval of the supervisor without overtime liability if the hours worked do not exceed forty (40) in the work week.
Management could not require an investigator to adjust ("flex") his/her hours in the work week to avoid overtime liability. However, management retains the right to stop work to avoid overtime liability.
For purposes of computing overtime, hours worked would include paid sick leave.
FINDINGS AND ANALYSIS
There is little evidence of record regarding the give and take of the bargaining process leading to the tentative agreement between the State and Association on pay and benefits. Therefore, neither party carries forward to this interest arbitration tactical or substantive advantages derived from the preceding contract negotiations. Specifically, the Association is not entitled to a quid pro quo it proposes.
The Association has put forward substantial, substantive changes to the collective bargaining agreement, especially regarding scheduling and the payment of overtime. Accordingly, the burden of persuasion is upon the Association to show a compelling need to justify changing the existing contract provisions, including the Letter of Agreement.
The statutory criteria mandate that the arbitrator look first at (a) "the interest and welfare of the public," and to utilize secondary criteria (b through h) only if the interest and welfare of the public does not control the decision. The problem with this approach, as noted by many arbitrators, is that the interest and welfare of the public is such a vague phrase and so fraught with competing interpretations. Arbitrators have almost unanimously concluded that the interest and welfare of the public can only be determined by reviewing the secondary criteria. In Association of Oregon Corrections Employees and State of Oregon (IA-13-95, 1996), Arbitrator William Bethke commented, "The problem is not that the concept of interest and welfare of the public is unimportant. To the contrary, it is vitally important. It is also extremely general and inherently debatable."
The Association and the State submitted Last Best Offer packages that have well-reasoned features and are based in evidence. Nevertheless, neither package convincingly established that "the interest and welfare of the public" can be determined by the arbitrator without consideration of the secondary criteria. Therefore, the following analysis applies the secondary criteria to the Last Best Offers of the Association and State.
Criterion (b): Reasonable Ability to Pay
In assessing the "reasonable" financial ability of the public employer to cover the costs of a proposed contract, the legislature instructed interest arbitrators to give "due consideration and weight to the other services, provided by, and other priorities of, the unit of government as determined by the governing body." Although the arbitrator is charged to give consideration and weight to the services and priorities as determined by the governing body, the governing body does not have unfettered discretion regarding its financial priorities and services. The arbitrator must determine what is reasonable. In Bend Firefighters Association and City of Bend (IA-09-95, 1996), Arbitrator Carlton Snow reasoned, "A fixed budget does not provide an impossible barrier to funding economic proposals. Otherwise an employer´s self-imposed budget would be able to eviscerate statutorily mandated collective bargaining." Furthermore, relative ability to pay is but one of a group of secondary criteria; the legislature did not designate it first among equals.
Certainly, no one can doubt the State of Oregon is in serious economic difficulties. Oregon is in a multi-year budget crisis; voters have repeatedly rejected tax increases. Consequently, the Department of Justice´s general fund allocation was reduced for the 2003 - 2005 biennium. The Association does not dispute the seriousness of the budget situation; however, the Association contends that sufficient money exists within DOJ´s budget to fund the overtime pay and paid lunch proposals. This claim is made even though the Association does not provide cost estimates for its proposals. The State argues that given DOJ´s reduced general fund budget and the improbability of supplemental funding, increased costs for overtime and paid lunches would lead to cutbacks in Agency services.
The State estimates that the Association´s proposal for scheduling work and overtime would cost about $130,000 during a two-year period (State #4 and #19); "flexed" hours during a prior two-year period were converted to overtime payments. Notwithstanding the Association´s valid challenges to various assumptions that underlie the conversion of "flex" hours to overtime payments, the $130,000 figure is useful as a rough approximation. Overtime pay from grants is excluded from this analysis.
The Association argues that surely $130,000 can be found in DOJ´s general fund budget of over $20 million to pay for additional overtime, without adversely impacting the mission of the Agency. The ability of an agency to "find money" within the labyrinth of its budget was shown when the DOJ expended $28,675 for status quo merit step increases (State #4). The $28,675 was spent despite the fact that the money was not in the 2003 - 2005 budget. In this vein, Arbitrator Vincent Helm wrote, "While many legislative funds are required to be spent on specific items, only the most naïve would believe that discretionary funding of this minute amount is not available to be expended without flying in the face of the statutory language defining ability to pay. Indeed, were it not so, the interest arbitrator becomes a mere ´rubber stamp,´ and the process of interest arbitration is rendered meaningless." (Oregon AFSCME Council 75 and State of Oregon Department of Administrative Services on behalf of Department of Corrections, 1A-11-03, 2003) Nevertheless, agency budgets are not bottomless pits of "squirreled away" money. At some point, there is no more toothpaste in the tube, no matter how hard we squeeze. However, the State has not persuasively established the untoward consequences from $130,000 of additional overtime expenses.
There is no evidence of record concerning the cost of the Association´s paid lunch proposal. The increased cost may or may not be de minimis for an already tight agency budget. The absence of such data weakens the Association´s position and hinders an assessment of the DOJ´s capability to absorb increased costs without adversely affecting its mission.
Implicit in the Association´s proposals is the assumption that the DOJ´s budget can absorb modest cost increases; in other words, DOJ has a "reasonable financial ability" to cover those cost increases without cutbacks in services. DOJ argues that given the constraints of its reduced budget, even modest cost increases would require savings through service cutbacks. With regard to this criterion, neither the State nor the Association is sufficiently persuasive for a decision favoring its Last Best Offer.
Criterion (c): Attract and Retain
The limited evidence concerning the recruitment and retention of investigators is not persuasive for either Last Best Offer; thus, this criterion is not determinative.
Criterion (d): Overall Compensation Presently Received
The limited evidence concerning overall compensation received by investigators is not persuasive for either Last Best Offer; thus, this criterion is not determinative.
Criterion (e): Overall Compensation and Comparable Communities
This criterion instructs the interest arbitrator to consider "Comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities." However, there is limited evidence concerning overall compensation received by DOJ´s investigators, and overall compensation among comparators proposed by the Association and the State. Therefore, this criterion is not determinative for its primary purpose. Nevertheless, there is value in addressing here the relevant issue of "comparable communities" for DOJ investigators. The analysis of criterion (h), which follows, incorporates scheduling information from comparable communities.
The Association argues that criterion (e)(C) does not exclude consideration of city and county police agencies as comparators for DOJ investigators. In support of its position, the Association cites this arbitrator´s decision in Association of Oregon Corrections Employees and Oregon Department of Corrections, (IA-18-01, Miller, 2002).
However, comparison of State overall compensation with City or County overall compensation should not be neglected. For some State employees, relevant local labor markets exist and should be taken into consideration in assessment of overall compensation. If a case can be made for a relevant local labor market, as AOCE has done in this matter, then consideration should be given to comparative overall compensation data as part of a (4)(h) analysis.
In this matter, the Association has not made a convincing case for a relevant labor market among DOJ investigators and local police agencies. A key component for a comparator is work performed. Evidence from the State and the Association indicates that DOJ investigators engage in specialized, complex, and, at times, politically sensitive activities not typically part of detective activities at city a or county level (Association #6). The skills, knowledge, and experience of DOJ investigators, especially the criminal financial investigators, are distinguishing features of these sworn officers. Moreover, their jurisdiction is statewide. Although many DOJ investigators have been recruited from local police agencies, this is not a prerequisite; among the fourteen current investigators, eight were recruited from city police agencies, five from within the State of Oregon, and one from the private sector.
In support of its position that local police agencies are appropriate comparables, the Association cites the DOJ´s request in 1997-1998 for reclassification of the investigators (Association #6). Among the arguments presented by DOJ was the assertion that its investigators were underpaid when compared with detective sergeants, lieutenants, and captains in city and county police agencies. Notwithstanding the salary comparisons in the reclassification request, it is clear from the evidence, including the reclassification request, that the typical activities of DOJ investigators are often more complex and more demanding of specialized skill/knowledge than the activities of the average city or county detective. City and county police agencies are not appropriate comparators.
The State proposes that California, Idaho, Nevada, and Washington serve as comparators. The four states geographically contiguous to Oregon have most frequently been regarded in prior interest arbitration proceedings as the appropriate comparators. Arbitrator Vincent Helm concluded, "The four contiguous states to Oregon, because of their proximity, form a natural nexus for purposes of comparability studies." (Oregon AFSCME Council 75 and Oregon Department of Corrections, IA-11-03, 2003) Arbitrator Helm also noted, "Stability in the process should be enhanced by consistent application of past standards for evaluating comparability." On this point of predictability, Arbitrator Howell Lankford reasoned, "It is important to the Interest Arbitration process to have an amount of consistency in the use of labor market comparables. Consistency enhances predictability, which in turn facilitates the relationship between the parties." (State of Oregon and Oregon Police Officers Association, IA-18-99, 2000) The Association´s argument that no DOJ investigator has been recruited from the four contiguous states does not dissuade the Arbitrator from accepting those states, and their relevant job classifications, as appropriate comparators.
The Association argues that criterion (e)(C) does not exclude other State of Oregon agencies as comparators therefore, it proposes the Oregon State Police. The Association reasons that DOJ and the State Police are the only State agencies that employ Certified Police Officers (sworn), and that State Police detectives and DOJ investigators frequently work together during investigations. However, the Oregon State Police Officers´ Association bargaining unit consists of 607 employees, a large majority of whom are not detectives. The Association´s bargaining unit at DOJ consists only of 14 investigators. Notwithstanding sworn status, these are not comparable groups and their collective bargaining agreements relate to very different work activities. The Oregon State Police is not an appropriate comparator.
Criterion (f): CPI-All Cities Index
The limited evidence concerning cost of living adjustments received by investigators is not persuasive for either Last Best Offer; thus, this criterion is not determinative.
Criterion (g): Stipulations of the Parties
The parties did not stipulate factors to be used in this analysis.
Criterion (h): Other Factors
In the judgment of the arbitrator, the award in this matter cannot be decided solely on the basis of the factors in subsections (a) through (f). Unlike most interest arbitration in Oregon, the primary issue here deals with conditions of work, specifically, scheduling. The criteria crafted by the legislature more directly address salary and benefit disputes.
It is in the interest of the State and the Association to devise a work scheduling system that accommodates three objectives.
The DOJ needs a scheduling system with sufficient flexibility to deal with the uncertainties inherent in the work performed by its investigators, while serving a variety of state and local clients, within a state-wide jurisdiction.
DOJ must operate within a tight and closely scrutinized budget dictated by the multi-year financial crisis confronting the State of Oregon.
Despite the often changeable nature of the work performed by investigators, they are entitled to reasonable stability and predictability for their personal, non-working lives, including the setting of work schedules and compensatory adjustments when schedules are changed.
A work scheduling system that most effectively accommodates these objectives best serves the interest and welfare of the public.
Investigators know all too well that the DOJ is "overtime averse." With this foreknowledge, investigators set their work schedules and determine how and when to adjust ("flex") a schedule to stay within a 40 hour work week. Seldom has management had to require an investigator to flex a schedule. However, the adverse impact of flexing on the personal lives of investigators increases as the work week progresses because fewer options remain. The Association argues that if work does not evolve as planned, under the current scheduling system the DOJ pays no penalty for the inconvenience of flexing on the personal lives of investigators.
The State argues that the current scheduling system also works to investigators´ advantage; it cites examples of work scheduling and flexing for long weekends, child and spouse care, hunting trips, classes, etc. Additionally, according to the State, management attempts, whenever possible, to minimize adverse impacts of flexing on investigators. Nevertheless, given the inherent unpredictability of many investigative activities, schedule changes often cannot be avoided. DOJ contends that, given its tight and scrutinized budget, flexing is a preferable alternative to either stopping work or paying overtime that would require forced savings through cutbacks to services.
The core of the Association´s scheduling proposal is fixed hours of work, Monday through Friday, 8 a.m. to 5 p.m. with an unpaid lunch hour. Should an investigator work outside the fixed daily hours, overtime pay would be required unless the investigator volunteered to flex his/her schedule. Management would have the option of stopping the investigator´s work to avoid overtime. The Association argues, "The Employer, as a matter of sound public policy, should have a cost attached to the disruption of the employees lives so that the Employer thinks twice about whether they really need the employee or not." (Association post-hearing brief, page 9) In response the State contends that the Association´s proposal would have the Employer pay more to get work done or not have needed work performed. There is of course the possibility that an investigator could forgo overtime pay and volunteer to flex. One can only speculate about how often an investigator would waive additional current income and the enhancement that overtime pay has for his/her future pension program benefits (Association #9).
Work scheduling provisions in the comparator states share two important elements (State #21a). First, they all provide some type of normal daily work schedule, such as eight hour work days, Monday through Friday. Second, they all utilize comp-time in conjunction with provisions for overtime payments. The states have a variety of methods for accumulating comp-time, establishing comp-time ratios, scheduling the use of comp-time, payments for unused comp-time, etc. Overall, the comparators´ provisions present a middle ground between the current scheduling system at DOJ and the Association´s proposed system. Unlike those at DOJ, investigators in the comparator states have daily and weekly work schedules, and more liberal provisions for compensatory adjustments than DOJ´s flex-time. On the other hand, provisions for comp-time management provide the comparator agencies more flexibility to meet the needs of work than does the proposal of the Association.
The Association contends that its proposal for a paid lunch is an issue of equity; investigators often eat with State Police Officers (detectives) whose collective bargaining agreement provides a paid lunch. Additionally, the DOJ investigators and the State Police are the only sworn police officers employed by the State. As a matter of equity, the Association reasons, this benefit of employment should be the same for the two groups.
The State argues that the Association has not shown a compelling need for this benefit. Investigators, at times, also have lunch with DOJ attorneys whose meals are not paid by the State; none of DOJ´s 1200 employees have a paid lunch benefit. According to the State, equity is determined by consistent employment benefits within the Department of Justice. Moreover, no State employees, other than the State Police, are entitled to such a benefit.
Notwithstanding that the Oregon State Police is not an appropriate comparator, it should be noted that the Association´s proposal for a paid lunch is not equivalent to the provision in the State Police collective bargaining agreement. The State Police provision contains a 40 mile minimum travel requirement that is missing from the Association´s proposal. Similarly, among the four comparator states, three (California, Nevada, and Washington) have a 50 mile minimum travel requirement. As drafted, the Association´s paid lunch proposal would be especially advantageous for the investigators.
The status quo is maintained under existing employment law with the exception of grievance procedures and fair share provisions. The Association proposes contract language that would have all contract provisions, including the grievance procedure and fair share clause, continue in full force and effect during the period of negotiations. The Association reasons that the evergreen clause would eliminate controversy concerning the processing of pending grievances.
The State argues that there is no compelling need for an evergreen clause. In the current round of negotiations, the parties agreed to continue the fair share provision and to process grievances within the DOJ. However, this ad hoc arrangement does not provide arbitration for unresolved grievances.
The "interest and welfare of the public" is served best by a Last Best Offer which most effectively accommodates the mission of the DOJ, the budget of the DOJ, and the interests of DOJ investigators. The interest and welfare of the public includes both the equitable treatment of the State´s employees and the implementation of agency services, within available revenue. The current scheduling system, although not as beneficial for investigators as the Association´s proposed system, nevertheless achieves a more effective balance among the relevant objectives. Under the Association´s proposal, if investigators do not voluntarily flex their schedules, and if the DOJ budget does not provide for additional overtime payments, management would be confronted with a choice between not accomplishing the agency´s mission or spending unbudgeted resources. As composed, the Association´s proposal is too restrictive given the nature of the work performed by the investigators; the fixed schedule would give more certainty and income to the investigators, but not change the underlying uncertainty of the work. Furthermore, if work must be done, carrying out the mission of DOJ would become more expensive because of an overly restrictive fixed schedule. At a time of a budget crisis in the State of Oregon, the Association´s proposal would not be in the "interest and welfare of the public."
The Association has not shown a compelling need for its overly restrictive fixed schedule system. The current scheduling system has advantages and disadvantages for DOJ investigators. Although it is assumed that most investigators would appreciate overtime pay, especially given its enhancement of future pension benefits, evidence does not indicate that the current scheduling system is overly burdensome.
On balance, information about work scheduling provisions in comparator states favors selection of the State´s Last Best Offer. In particular, the management of comp-time provides those agencies the critical element of flexibility missing in the Association´s proposal. The Letter of Agreement - Alternate Schedules, appended to the collective bargaining agreement, is evidence that the parties acknowledge a need and a willingness to accommodate the interests of both the DOJ and its investigators. The comparator states show options and opportunities for further refinement of DOJ´s scheduling system.
The Association has not shown a compelling need for a paid lunch benefit, especially given the generous entitlement language drafted by the Association. Three of the comparator states and the Association´s own state-level reference group, the Oregon State Police, provide this benefit with minimum-miles-traveled requirements. A miles-traveled requirement is not part of the Association´s proposal; instead, the Association uses less restrictive language "travel outside the County of their regular work site." Additionally, the Association has not persuasively established that equity for the investigators should be determined by considering terms of employment in another agency, the Oregon State Police, rather than within the investigators´ own agency, the Department of Justice. This issue favors selection of the State´s Last Best Offer.
Given existing employment law regarding the maintenance of the status quo, the Association´s proposal for an evergreen clause closes-the-circle, so to speak. However, the Association is proposing to settle issues, in advance, that are best left to the parties to negotiate. In the absence of a showing of compelling need, it is prudent for an interest arbitrator to interfere as little as possible with the dynamics of collective bargaining. The Association and the State have demonstrated a willingness and ability to deal with these matters.
The Last Best Offer package of the Employer is selected and ordered to be implemented, pursuant to ORS 243.746(5).
Ronald L. Miller, Arbitrator
November 30, 2004
Representing the Association: Daryl S. Garrettson
Representing the State of Oregon: Herbert L. Harry