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IA-18-95
In the Matter of the Interest Arbitration between the Deschutes County Sheriff Association and Deschutes County. IA-18-95.
 
Contents
 
Issues: Association; County
 
Factors under SB 750
 
Findings of Fact: Wages and Economic Items: (b) Financial ability; (c) Recruitment and retention; (d) Overall compensation; (e) Comparability; (f) Cost of living; (g) Stipulations
 
Discussion: Procedural issues; The newly revised factors under SB 750; The case at hand: Wages and economic benefits; Language issues
 
Conclusion: The interest and Welfare of the Public
 
Award
 
This is an interest arbitration proceeding conducted under the terms of ORS 243.746. (The parties both agree that the dispute is subject to the statutory interest arbitration provisions as amended by SB 750 and to the rules of the Employment Relations Board (ERB) promulgated in response to SB 750.) The parties exchanged last best offer packages (hereafter, "LBOPs") in a timely manner.(1) The hearing was orderly. Both parties had the opportunity to present evidence, to call and cross examine witnesses, and to argue the case. Both parties filed timely post-hearing briefs.(2)
 
ISSUES
 
The parties are separated, primarily, by a dispute over wages, although the LBOs also address issues of hours of work, scheduling leaves of absence, workers´ compensation, retirement, insurance and the duration of the economic provisions of the new contract. Here are the written LBOs as served on the parties and on the arbitrator before hearing:(3) (Note: [] indicates shaded material; ** indicates double-underlined material.)
 
Association´s Last Best offer Package
 
Article 12 - Hours of Work
 
E. To the extent that training cannot be scheduled during an employee´s regular shift, the first twenty (20) hours per year of such training shall be compensated at the straight time rate for the employees not receiving certification pay.
 
*F. Employees who volunteer for extra duty assignments that are ongoing (such as SERT) that require regularly scheduled monthly training shall receive up to eight (8) hours of straight time pay per month for the actual hours of training that are held outside their regular work period.*
 
Article 13 - Working Out of Classification
 
[E. All Field Training Officers shall receive five percent (5%) premium pay.]
 
*E. Employees who are assigned as a Field Training Officer (FTO) shall receive an additional $75.00 per month above their regular compensation. Compensation shall only be paid while the employee is working as an FTO during a set period of time previously approved by a department Lieutenant or above. FTO responsibilities shall be department management.*
 
Article 14 - Compensation
 
*A. Wages for employees in the bargaining unit shall be modified by the following schedule:
 
Effective July 1, 1995 the wages for all classifications shall be increased by five percent (5%).
 
Effective July 1, 1996, the wages for all classifications shall be increased by four percent (4%)
 
Effective January 1, 1997 the wages for all classifications shall be increased by one percent (1%).
 
Effective July 1, 1997 the wages for all classifications shall be increased by four percent (4%).
 
Effective January 1, 1998 the wages for all classifications shall be increased by two percent (2%).*
 
B. Pay Periods. Employees shall be paid on a monthly basis, and shall receive the check on the last working day of the month. In the event the regular pay day shall fall on a Saturday, Sunday, or a County recognized holiday, the last preceding regular work day shall be the regular pay day in lieu of the last day of the month.
 
C. Corrections officers [with seven (7) years of continuous full-time service with the Sheriff´s Department and] who possesses an Intermediate Certificate shall receive [two and one-half percent (2 ½%)] *five percent (5%)* of the employee´s base for premium pay. Corrections officers [with ten (10) years continuous full-time service with the Sheriff´s Department and] who possess an Advanced Certificate shall receive [five percent (5%)] *eight percent (8%)*(4) premium pay of the employee´s base pay for premium pay.
 
Article 27 - Leave of Absence with Pay
 
(4) A full-time employee who has been continuously employed by the County for a period of six months shall be entitled to leave with pay for a period not exceeding fifteen (15) [consecutive] days in any one calendar year for a period of annual active duty for training as a member of the National guard, National Guard Reserve, or any reserve component of the Armed Forces of the United States, or the United States Public Health Service, provided the employee has made written application therefore. Military leave with pay may only be granted when the employee receives bona fide military orders to active duty for a temporary period of time. *Each employee shall provide his or her schedule to the Department every three (3) months.*
 
Article 31 - Retirement
 
*A. The City agrees to continue to provide a retirement plan for each employee, such being through the Public Employees Retirement System of the State of Oregon. The City will pay the employee´s contribution of 6% of gross earnings to the Public Employees´ Retirement System. Effective July 1, 1995, employees shall contribute six percent (6%) of their salary to the Public Employees Retirement System as required by Measure 8. In the event Measure 8 is determined to be unconstitutional or invalidated by the Oregon legislature, the Oregon Supreme Court or the U.S. Supreme Court, the City will resume the pre-Measure 8 practice of "picking-up" the employees six percent (6%)contribution, and will reimburse all employees for all monies withheld since 7/1/95.*
 
Article 32 - Insurance
 
*A. 7/1 1995-1996 Fully paid. 7/1/ 1996-1997 Fully paid. 7/1 1997-1998 Fully paid except that the County may choose to reopen on insurance in the third year and the Association may choose to reopen on wages. The County agrees to maintain benefit levels that are equal to or better than current benefit levels.*
 
B. Life Insurance. The County shall provide a life insurance benefit for each employee equal to the employee´s gross annual salary.
 
C. Prescription Drug Plan. The County shall provide a prescription drug plan similar to the current plan which is in effect with no more than a $10.00 per prescription co-pay.
 
D. Long Term Disability. The County shall provide each employee with a long term disability insurance policy, which will be effective no longer than ninety (90) days after disability and will provide 2/3 of the employee´s net wage with a maximum of $3,000 per month and in all other respects will be at least equal to that which is currently being provided by the Standard Insurance Company policy in effect on May 1, 1988.
 
E. Vision Care. The County will provide a vision plan which shall be same as provided to all other County employees.
 
F. "125 Plan". The County will implement a "125 Plan" by the lst of January, 1991. This plan will allow for pre-taxed deductions for employees´ income for amounts spent for medical, prescriptions, orthodontics, and child care expenses.
 
*G. The County shall make contributions to retiree medical insurance in accordance with County rules for similar payments made to other County employees. These payments shall be made to all employees who retire or have retired as of January 1, 1994.*
 
Article 46 - Duration
 
A. This Agreement shall be effective upon ratification, with the economic components retroactive to July 1, 199[2]*5* and shall remain in full force and effect through June 30, 199[5]*8*, when it expires at Midnight on that date. After June 30, 199[5]*8*, this Agreement shall be automatically renewed from year to year, unless either the County or the Association gives written notice to the other not later than November I prior to the aforesaid expiration date of this Agreement of its desire to modify the Agreement.
 
B. This Agreement will remain in full force and effect during all periods of negotiations.
 
Appendix A
 
*In addition to salary schedules of other bargaining unit members, the County will make the following changes:
 
Animal Ordinance Technician: 1/1897.96; 2/1993.30; 3/2093.83; 4/2197.82; 5/2307.02; 6/2422.37. Effective July 1, 1995, one additional step will be added to Animal Ordinance Technicians. On June 30, 1996, step 1 of the new six step scale will be eliminated and steps 2-6 will be re-numbered 1 through 5. At the completion of negotiations the salary schedule steps 1 through 6 will be adjusted if any COL raise is given.
 
Civil Technician: 1/1897.96; 2/1993.30; 3/2093.83; 4/2197.82; 5/2307.02; 6/2422.37. Effective July 1, 1995, one additional step will be added to Civil Technician. On June 30, 1996, step 1 of the new six step scale will be eliminated and steps 2 - 6 will be re-numbered 1 through 5. At the completion of negotiations the salary schedule steps 1 through 6 will be adjusted if any COL raise is given.
 
Office Assistant: Effective July 1, 1995, a new step will be added to the Office Assistant position for a total of six (6) steps. On June 30, 1996, Step 1 will be eliminated leaving five steps numbered 1 - 5. Paid lunch period for Office Assistants will be eliminated. 1**/1622.37; 2/1703.83; 3/1788.77; 4/1878.90; 5/1972.50; 6/2071.12. **Will increase July 1, 1995 if COL is given.*
 
County´s Last Best Offer Package
 
Article 14 - WAGES
 
July 1, 1995 through June 30, 1996: 3.2% increase
 
July 1, 1996 through June 30, 1997: CPI All Cities (minimum 2.5% - maximum 4.5%)
 
July 1, 1997 through June 30, 1998: CPI All Cities (minimum 2.5% - maximum 4.5%)
 
(Note: These percentages and increases also apply to certificate pay, clothing allowance and longevity.
 
Article 26 - WORKERS´ COMPENSATION
 
Workers´ Compensation will be paid at the rate mandated by Oregon State Law.
 
In case of extreme emergency, the Board of County Commissioners may authorize supplemental Workers´ Compensation payments, which shall be the difference between the employee´s regular monthly salary and the amount of Workers´ Compensation payments. In no case will the combined payment from the County, Workers´ Compensation and the supplemental pay exceed the employee´s regular salary rate.
 
In no case will supplemental payment be allowed after an employee becomes eligible for long term disability benefits.
 
Extreme emergency is defined as:
 
1. Inability to return to work in any capacity for at least four working weeks;
 
2. Demonstrated increase in basic living expenses as a direct result of the injury;
 
3. Extreme hardship, unanimously determined by the Board of County Commissioners.
 
Article 31 - Retirement
 
The County shall be a participant in the Public Employees Retirement System (PERS) or its equivalent. After the employee has completed his/her six months employment period and holds a position requiring that the employee work in excess of 600 hours per year, the County shall make contributions to PERS in accordance with levels established for the employee´s position. The employees will contribute to a retirement plan in accordance with State law. If alternatives to employee contributions are identified within the State law or if State law changes, the contract will automatically be opened for consideration of these issues. The County will take appropriate action to have the employee contribution defined as tax deferred.
 
Article 32 - INSURANCE
 
A. Health Insurance is to include the following: health insurance; vision insurance; dental insurance; prescription drug insurance; orthodontic insurance(5)
 
The same health insurance benefits which are provided to regular County employees will be provided to DCSA members.
 
For fiscal year 1995/96 health insurance benefits will be full paid by the County.
 
For fiscal year 1996-97 health insurance benefits will be full paid by the County.
 
For fiscal year 1997-98 health insurance benefits will be fully paid by the County; however, if the premium increases over 5% the amount over will be split 50/50 between the employee and the County.
 
Through the duration of the contract, DCSA members will have an employee representative on the County Insurance Benefits Advisory Committee.
 
B. Other insurance is to include the following: employee life insurance; dependent life insurance; long-term disability; workers´ compensation insurance; unemployment insurance; retirement health insurance. (Note: The retirement health insurance plan is a new benefit provided to DCSA members.)
 
C. IRS 125 Plan: In addition to health insurance and other insurance, the County will make available to DCSA members a qualified IRS 125 Plan.
 
D. Eligibility: Only full-time DCSA employees will be eligible for benefits in accordance with this contract. Regular part-time employees (20 hours or more) will be eligible for pro-rated benefits if they choose to pay the difference.
 
E. Married couples who both work for the County. Coverage will not be duplicated. One spouse or the other will be covered as the primary recipient.
 
Article 46 - DURATION
 
Modify to provide for three year agreement from July 1, 1995 through June 30, 1998. NOTE: Previous tentative agreements signed off by the parties during bargaining will be. honored. The additional cost of the County´s wage proposals is $181,613 for 95-96 and a minimum of $409,866 for 97-98.
 
Factors under SB 750
 
The interest arbitration statute, as revised by SB 750, now requires an interest arbitrator to "select only one of the last best offer packages submitted by the parties [and to] promulgate written findings along with an opinion and order [based) on the criteria prescribed in subsection (4) of this section."
 
(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.(6)
 
(f) The CPI-All Cities Index, commonly known as the cost of living.(7)
 
(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.
 
Findings of Fact
 
Wages and Economic Items
 
(b)(8) Financial ability. The County does not claim an inability to pay the increase proposed by the Association. The Association claims that the Sheriffs´ budget transferred a million dollars back to the general fund after a successful law enforcement levy.
 
(c) Recruitment and retention. There is no dispute in the record that the County has received approximately 75 applications for each bargaining unit position filled over the recent years. The Association does not dispute the County´s claim that it has experienced no problems in recruitment or retention at the current wage and benefit rate.
 
(d) Overall compensation. Both parties presented comparability, data which made some attempt to effect comparison of these employees compensation on an "overall" basis. Neither party objected to the other´s corrections and adjustments which were justified as reflections of an "overall" compensation approach. The comparability data is set out below.
 
(e) Comparability. Both parties agree that the proper comparators in this case are the Oregon Counties most closely resembling Deschutes County in population. The Association proposes comparison with the next two larger and next two smaller counties. The County proposes comparison with the next three larger and next three smaller.(9) Here are the figures offered by the Association:
 
County / Top Step / Disposable Income (a) / Employers Total Cost(b)
 
Benton / 3,237 / 3,025 / 4,238
 
Douglas / 3,208 / 3,208 / 4,275
 
Deschutes / 2,969 / 2,831 / 3,901
 
Linn / 3,106 / 2,892 / 4,197
 
Yamhill / 2,564 / 2,564 / 3,509
 
Average(c) / 3,029 / 2,922 / 4,055
 
$ difference / 60 / 91 / 15
 
% difference(d) / 2.01% / 3.22% / 3.92%
 
Notes: a. These figures reflect differences in automatic incentives and insurance and retirement contributions from the employees.
 
b. These figures reflect differences in employer retirement costs (contribution and employee pickup), insurance, and monthly vacation and holiday cost.
 
c. These are averages of the four comparator counties, without Deschutes.
 
d. The percentages state the dollar difference as a percentage of the Deschutes wages.
 
Here are the County´s figures for its six proposed comparators, showing wages for Deputy and Corrections Officer at the entry level and at the top of the scale:(10)
 
County / Population / Deputy, entry (no certification pay) / Deputy, top (5 years & adv. BPST) / CO, entry / CO, top (5 years & adv. BPST
 
Jackson / 160,000 / 2,493 / 3,341 / 2,367 / 3,172
 
Douglas / 97,100 / 2,278 / 3,049 / 2,197 / 2,197
 
Linn / 96,300 / 2,467 / 3,261 / 2,704 / 3,261
 
Deschutes(A) / 89,500 / 2,523 / 3,363(11) / 2,379 / 3,333
 
Benton / 75,400 / 2,536 / 3,394 / 2,536 / 3,399
 
Yamhill / 72,800 / 2,028 / 2,862 / 2,028 / 3,028
 
Josephine / 68,000 / 1,996 / 2,848 / 1,996 / 1,996
 
Average(B) / 94,157 / 2,332 / 3,160 / 2,315/ 2,912
 
$ Difference(C) / / (203) / (64) / (421)
 
% Difference(D) / / (7.59)% / (6.04)% / (2.68)% / (12.62)%
 
Notes: A: Wages proposed by the County.
 
B. Average of six counties.
 
C. Dollars County proposed wages trail or (exceed) average.
 
D: Dollar difference as percentage of County proposed wages. Negative numbers indicate the County wage is above the average.
 
(f) The cost of living. The All-Cities CPI indexes were about 3.2 when negotiations began and 2.5 at the time of hearing, The CPI for calendar 1995 was 2.5 on both All-Cities indexes ("W" and "U"), As far as the record shows, the CPI for 1995-1996 is not substantially dissimilar from the CPI for calendar 1995.
 
(g) Stipulations. Both parties propose that the uncontested portions of the prior, 1992 to 1995 agreement continue into the new contract except where altered through bargaining or by this award.
 
DISCUSSION
 
Procedural issues. The County inadvertently attached to its written LBOP the last pages of its offer in mediation, The Association´s attorney called the County representatives when the LBOP was received; and the Association was not misled by the County´s error. The County substantially complied with the notice provisions of the statute and ERB rules.
 
The newly revised factors under SB 750. When the legislature changed the list of factors to be considered by interest arbitrators it made at least two changes that are particularly significant in the case at hand: it made "interest and welfare of the public" the criterion of "first priority" and specified that the other considerations were to be given "secondary priority," and it required that an arbitrator shall not "use . . . other factors if ... The factors in paragraphs (a) to (g) ... provide sufficient evidence for an award."
 
The "interest and welfare of the public"-which the statute now requires to have "first priority"-is significantly different from the next five listed criteria. Ability to pay, recruitment and retention, overall compensation, comparability, and the CPI are all criteria which point to hard data: How many vacancies have there been? Over what period of time? What is the average length of service? How many applications have there been for each vacancy? After how long and broad a Posting? How much vacation leave, holiday leave, sick time, pensions, insurance, etc. do these employees receive? What do employees receive for similar services in communities in Oregon of similar size? What has the Bureau of Labor Statistics established to be the change in cost of living in terms of one of the All-Cities indices? How much money will the employer take in? How much does it have now? How much is it already obliged to spend for other things? Etc.
 
Some of these factual elements are relatively simple to check - e.g. the CPI numbers, employee turnover, volume of applications, total benefits currently received-and some permit more discussion and argument. Budget data, for example, permits analysis through the skills of an accountant or economist; comparability data allows argument about whether proximity should be considered and whether the comparators should be the four most similar in population or the six most similar, etc. But every one of the factors listed (b)through (f), at least, points to hard data that the parties are to bring to the hearing and which the interest arbitrator is instructed to consider as a factor of "secondary priority." Moreover, every one of these items points to different hard data: We can check recruitment and retention numbers without talking about the CPI; comparability numbers do not usually involve budgetary analysis; etc.(12)
 
On the other hand, there is no similar body of hard data for the "primary factor" of "the interest and welfare of the public."(13) Moreover, "the interest and welfare of the public" can hardly be discussed at all except in terms of the factors listed in (b) through (f), It is hard to imagine what an argument about the interest and welfare of the public would look like-in the context of a dispute over employee compensation-without any reference to the factors which the legislature specifies are to be given "secondary priority."
 
Faced with these characteristics of the statutory factors, what did the legislature have in mind when it specified that interest and welfare of the public be the "primary" factor and that the others be "secondary?"(14) It seems to me that that specification has two necessary consequences: First, it makes explicit for the parties and the arbitrator how the "secondary" factors are to be analyzed, how the arguments should be couched, and what the final goal of the whole process should be. Second, it makes clear that none of the "secondary" factors is to be exalted over the overall-arguments in terms of interest and welfare of the public: even if the employer is dead broke, the interest and welfare of the public might require an arbitrator to award the wage increase proposed by a union, and even if the employees are far, far behind their proper comparables, the interest and welfare of the public might require an arbitrator to award the wage freeze proposed by an employer.
 
The second most significant revision made by SB 750, in the case at hand (and perhaps generally) is the introduction of a threshold determination which an interest arbitrator must make in order to "use ... other factors." That required determination is that the specifically listed factors do not "provide sufficient evidence for an award." There is one class of disputes which will ordinarily meet this requirement almost without discussion: i.e. disputes over language issues which have no obvious direct economic impact. The factors specifically set out in the section are relevant primarily to economic disputes. An interest arbitrator who tries to analyze a language issue (a "zipper" clause, e.g., or a proposal for vacation scheduling language) with no tools but these will often find no basis for an award because these tools yield nothing useful.
 
Within the compass of economic issues, on the other hand, it is the rare dispute that lacks "sufficient evidence for an award" in the listed factors.(15) It is significant that the statutory language does not require that the evidence from listed factors alone support "the best" award. (That would be a very strange legislative directive, i.e. not to consider "other factors" unless they would make a difference in the outcome of the case.) The clear language of the statute requires an interest arbitrator to restrict his or her consideration to the factors specifically set out unless-as in the case of language issues-those factors do not provide sufficient evidence for any award at all.
 
The case at hand: Wage´s and economic benefits. The ultimate issue is whether the interest and welfare of the public is better served by the proposal of the Association or by the proposal of the County. Examining the listed secondary" factors one at a time shows the following:
 
(b) Financial ability to meet the cost of the proposed contract. There is
no dispute of the County´s ability to meet the cost of either proposal. Indeed,
one of the Association´s primary arguments is that the County should pay the
larger increase simply because it can afford to.(16)
 
(c) Recruitment and retention. There is no dispute that the current wage and benefit package has allowed the County to recruit and retain employees. The Association does not claim that there has been excessive turnover in the past or that there is any shortage of applicants at the current wage and benefit level. The Association does argue that the selection of the County´s proposal "will result in disgruntled employees who will look elsewhere for employment;" but there is no factual support for that argument in the record. As far as the record shows, considerations of recruitment and retention suggest that the I County´s proposed wage and benefit package is consistent with the interest and welfare of the public and do not show that the Association´s is superior.
 
(d) and (e) Overall compensation and comparability. According to the County´s data-which the Association does not contest-the County´s proposed first year increase will result in its wage package being more than seven and a half percent above the comparable average for Deputy pay at the base and more than six percent above the comparable average at the top, and the County will be more than 2.6 points above the Corrections Officer average at the base and 12.6% above that average at the top. The Association´s figures provide comparison only of the County´s current wage scale (and only of Deputy pay); but adding the increases proposed by each of the parties produces these numbers:
 
/ Top Step / Disposable Income / Employer´s Total Cost
 
Average / 3,029 / 2,922 / 4,055
 
Deschutes w/County proposal / 3,064 / 2,926 / 4,015
 
$ difference / (35) / (4) / 40
 
% difference(e) / (1.14)% / (0.14)% / 1.00%
 
Deschutes w/Assn. proposal / 3,118 / 2,971 / 4,076
 
$ difference / (89) / 21 / (21)
 
% difference(e) / (2.84)% / 0.72% / (0.52)%
 
Note: e. The percentages set out the differences in salary compared to the salary proposed. Negative numbers indicate the County wage is above the average.
 
Even the Association´s figures show that the County´s proposed first year increase would put Deputies ahead of the average of the Association´s comparators in every category but Employer´s total cost, where they would be 1% behind that average. The Association provided no data for CO pay; but from the County´s data it is clear that the Association´s proposal would bring COs even farther ahead of any plausible average of comparables than the almost 13% they will lead the six-county average after the County´s proposed increase.
 
There is no plausible dispute, on this record, that considerations of comparability favor the County´s proposal rather than the Association´s.
 
(f) Cost of living. The County argues that its 3.2% offer in the first year is substantially over the cost of living increase for all of 1995 while the Association´s proposed 5% increase would more than double the relevant CPI increase. The County also argues-and quite plausibly-that election year pressures will tend to prohibit any substantial increase in the CPI in the third year of the contract.(17) The Association argues that the CPI should not be a limitation in this case because the employees at issue are professionals who work exceedingly long hours in dangerous occupations, The Association also points out that the County Administrator was quoted by the press in January, 1995, as claiming that the CPI "used by the County" was up 4.6% and that the Board was "aware that in the past Deschutes County has not realistically kept pace with recognized inflation indicators and consumer price indices." But the revised form of the interest arbitration statute is quite specific about exactly what measurement of the CPI shall be used in interest arbitration cases. Any other sort of cost of living measurement is relevant, if at all, only as an "other factor" under subsection (h). As far as the record shows, consideration of "the CPI-All Cities Index, commonly known as the cost of living" favors the County´s proposal rather than the Association´s.
 
(h) Other factors. The Association presented evidence of the rate of growth of the County and of the. median home prices. More significantly, the Association offered evidence: (1) that the County proposed a 5.5% "cost of living" increase for its non-represented employees in 1995 (during an AFSCME representation election); (2) that the Commissioners took a 9% increase in 1995 (following the recommendation of a citizens´ panel); and (3) that the County offered 4% in each of the first two years of a new contract to the newly- organized AFSCME unit. Similarly, the County points out (1) that under the Association´s proposal, with certification pay for senior Corrections Officers, senior COs would be paid at a rate higher than top step Deputies, (2) that the employees in this unit have received pay increases of over 56% while the County´s unrepresented employee pay increased by only a bit over 32%, and (3) that the County´s current pay for commissioners is 2% behind the average for the four counties most nearly similar in population."(18)
 
None of this data can properly be "used" in this case, because I cannot conclude in good faith that the factors listed in items (a) to (g) do not provide sufficient evidence for an award.(19)
 
There are three other substantial financial issues here: First, the Association proposes to carve out special wage treatment for Animal Ordinance Technician, Civil Technician and Office Assistant. Nothing in the record suggests that this part of the Association´s proposal is supported by any of the listed statutory factors.(20)
 
Second, the Association agrees that the County´s unified insurance program allows it to pay some of the best rates in the state for one of the best plans in the state, The Association takes issue with the County´s insurance proposal only out of concern that the County language does not clearly state the trigger for sharing possible premium increases in the third year: i.e., "the premium increases over 5%" over what? For that reason, the Association proposes to provide a reopener for third year insurance, rather than addressing that issue exhaustively in the three-year contract. On the face of the County´s proposal, it appears that the goal is to protect the County from substantial insurance cost increases over the life of the three year agreement, so the answer to the Association´s question is 5% over the premium cost to the county per FTE in the more expensive of the first two contract years (which, given the recent history of insurance costs, will probably be the second year). There is not such substantial ambiguity in the County´s proposal that the Association´s proposed reopener is to be preferred over it.
 
The final economic issue addresses PERS pickup. The PERS pickup issue is still in a state of legal uncertainty following Measure 8; and the dispute here is over how to deal with a possible judicial conclusion that Measure 8 is impermissible. The Association proposes that County pickup would continue automatically in that event; and the County proposes that the contract would reopen. If I had authority to address issues separately, I would certainly prefer the Association´s proposal.(21) On a "package" basis, however, its superiority is not nearly enough to make the Association´s package superior to the County´s overall.
 
Language issues: Hours of Work (Article 12F) and Working out of Class (Article 13). The parties reached agreement on these issues at hearing.
 
Military Leave (Article 27). The Association argues that the addition of the word "consecutive" is necessary in order to make the language comply with external law. The County counters that, if the existing language is ambiguous, the County is already obliged to apply the existing language in a manner which is consistent with external law (to which the Association does not object). The Association also notes that the County would be the main beneficiary of the advance scheduling which the Association proposal would require; but the Association´s proposal is not so superior to the County´s as to overcome the considerations of the economic issues.
 
Duration. Both parties propose a three year agreement.
 
Conclusion: The Interest and Welfare of the Public
 
Finally, the Association argues that its proposal is favored directly by consideration of the interest and welfare of the public because the common Public support for law enforcement levies-including, in particular, the recent levies in Deschutes County-shows a clear preference for highly paid, professional county police. There are three problems with this argument: First, and most obviously, the fact that the public favors more funds for public safety does not show that the public interest favors extremely highly paid public safety employees. The obvious alternative is a greater number of fairly paid public safety employees, Second, the problem with separating discussion of the interest and welfare of the public entirely from the "secondary" factors, as the discussion above suggests, is that such a separation leaves no facts in the discussion. On the Association´s theory that the interest and welfare of the public directly favors even more highly paid public safety employees, the it obvious question is "how highly paid?" Without reference to comparability and the cost of living and the other listed factors, that question has no obvious answer.
 
Finally, I have never seen or heard of an interest arbitration award which used ability to pay as a motor, driving wages upward, rather than a brake, resisting that upward tendency. The Association offers no citation for the proposition that public employees-either in general or in the case at hand-should be more highly paid simply because the public employer is currently in a good financial situation. In the nature of local government, elected officials always have to choose among a host of worthy supplicants for the limited funding available. It is hard to imagine the sort of record that would establish that the interest and welfare of the public were served by paying a group of public employees more than considerations of comparability, recruitment and retention, and the cost of living required as fair compensation.
 
In conclusion, within the factors now set out in the interest arbitration statute, the interest and welfare of the public requires the selection of the last best offer package proposed by the County.
 
AWARD
 
The contract shall contain the last best offer package proposed by the County.
 
Respectfully submitted,
 
Howell L. Lankford, Arbitrator
 
Representing the Association: Rhonda Fenrich, Esq.
 
Representing the County: Bruce Bischof, Esq.
 
Footnotes:
 
1. One complication of that exchange is addressed in the discussion below.
 
2. At hearing the parties agreed that post-hearing briefs would be postmarked on or before Match 22 and that the record would close with my receipt of the latter of those briefs. After mail delivery on March 26 1 still had not received the brief of the Association. Phone calls to both par-ties informed me that the brief had been timely mailed and that the County had received its copy in a timely fashion. The County agreed that the Association could send me another copy; and the Association agreed to do so, Before that second copy arrived, however, I received the original mailing-which had been properly postmarked on March 22-on March 29, 1996. The second copy arrived the next day.
 
3. The County´s LBO was postmarked February 7; and the Association´s LBO was postmarked February 8.
 
4. At hearing, the Association claimed that the "eight percent (8%)" was a clerical error which should have been known to the County and that it should not be included in the LBOP. The County declined to allow the notice to be revised at hearing.
 
5. The County´s three-page written notice of its LBOP included an additional two-page attachment which was unidentified in the written notice, but which was, apparently, a copy of the last two pages of the County´s last offer to the Association in mediation. That attachment was identical to the text of the last two pages of the LBOP except that the remainder of the proposal under Article 32-set out in the body immediately below this note-was replaced, in the mediation proposal, by the following:
 
Health insurance benefits will be provided to DCSA members under the same conditions and/or restrictions as provided to regular County employees. In other words, if regular County employees have a "co-pay", then DCSA members will have the same "co-pay". Or, if regular County employees their premiums paid in full by the County, then DCSA members will have their premiums paid in full. If coverage is adjusted and/or modified for regular County employees, the same will apply to DCSA members.
 
Through the duration of the contract, DCSA members will have an employee representative on the County Insurance Benefits Advisory Committee. (Note: For fiscal year 1995/96 there will be no modifications and/or changes to the insurance benefits provided DCSA members and their families. DCSA members will have their premiums paid in full by the County.)
 
6. Neither party claims that the special provisions aimed at large cities and counties-and at the state itself-apply in this case.
 
7. As the Association points out, there are two distinct CPI-All Cities Indices, the "W" index and the "U." This ambiguity in the statute is not significant in the instant case.
 
8. "Interest and welfare of the public," which the statute requires to be the "first priority" consideration in this case, is not a purely factual consideration; and it is therefore discussed below (at p. 17).
 
9. The Association argues that use of Josephine County, in particular, is inappropriate in this case because it is now in layoff status with only seven deputies on patrol.
 
10. Neither of the parties offered comparability data for the other classifications included in this unit including, particularly, Animal Ordinance Technician, Civil Technician and Office Assistant except that the County offered LGPI figures showing that its proposed wage rate for Animal Control Technician is $1,959-$2,381 compared with an average of all counties reporting to LGPI (i.e. Coos, Douglas, Jackson, Josephine, Linn and Polk) of $1,827-$2,353 and an average of Douglas and Linn counties only of $1,923- $2,496. This would put the County from 7% above the average (of all counties reporting) at the base to 7% below the average at the top.
 
11. The numbers set out at top step deputy pay are different in the figures of the two parties because the County figures include advanced BPST certification while the Association figures do not.
 
12. The one obvious exception is the inescapable connection between total compensation and comparability analysis.
 
13. In the end, the interest and welfare of the public is a matter of judgment based on factors such as those set out in the "secondary" criteria. If the interest and welfare of the public were ascertainable as a factual matter-as the secondary criteria are - our notion of government itself would be different, because the whole point of a representative government, after all, is to decide the interest and welfare of the public
 
14. It is a universal presumption in the interpretation of all documents-statutory or contractual--that the drafters did not intend to say something that is obviously silly on its face; so the legislature cannot have intended to tell interest arbitrators to decide claims of the interest and welfare of the public without making reference to any of the relevant data.
 
15. The legislature added the phrase "in the judgment of the arbitrator," which, presumably, instructs a reviewing court to accord substantial discretion to the interest arbitrator´s judgment on this threshold issue, But, for two reasons, that addition obviously does not mean that the threshold determination is to be ignored. First, the discretion extended to the interest arbitrator is probably not unlimited, It is not at all difficult to imagine a reviewing court considering an interest arbitration opinion and concluding that the arbitrator could not possibly have concluded that there was not sufficient evidence for an award without consideration of some "other factor" which he or she then found to be determinative of a dispute over an economic issue. Second, interest arbitrators are supposed to try to do what the legislature tells us to do, and to do it in good faith. It seems to me that that obligation is inconsistent with a facile statement that the listed factors do not provide sufficient evidence for "an award" if that statement only allows the interest arbitrator to address some other factor that was obviously very important to one or both of the parties. Work force parity, or comparable worth, or internal comparability, for example, is a vastly important issue of wage and salary administration; but there is no obvious way to fit those concerns into the specific listed statutory factors for interest arbitration unless the parties stipulate that they are relevant.
 
16. The Association capsulized its argument at hearing: "We are a ´share the wealth´ Association; if the County can afford the increase, it should pay it."
 
17. The County also points out that these employees have received over 56% in wage increases over the last 10 years, not including the County´s current offer-as compared with an increase of less than 42.25% in the CPI index over that same period.
 
18. This last bit of data is found only in the County´s post-hearing brief, which is not an acceptable avenue for the introduction of factual material in any case.
 
19. Moreover, the result in this case would be the same with or without the consideration of these "other factors."
 
20. At hearing, the parties disagreed about whether or not the negotiators had tentatively agreed to the creation of new classifications as suggested by the Association´s proposal for special pay scales here. Considering the absence of classification descriptions and the unique skills of the incumbent employee proposed by the Association for the Civil Technician classification, more likely than not, there was no such tentative agreement.
 
21. Governor Atiyeh´s statement in the voter´s pamphlet made it clear that Measure 8 was an attempted theft from public employees under color of initiative.