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IA-21-99
In the matter of the interest arbitration between LANE COUNTY PEACE OFFICERS' ASSOCIATION, and LANE COUNTY (SHERIFF'S OFFICE). IA-21-99.
 
I. INTRODUCTION
 
II. APPLICABLE STATUTORY PROVISIONS
 
III. LAST BEST OFFER PACKAGES
 
IV. ISSUES IN DISPUTE
 
V. POSITIONS OF THE PARTIES
 
A. The Association
 
B. The County
 
VI. DISCUSSION
 
A. Interest Arbitration Practice Before 1995
 
B. After SB 750
 
C. Interest and Welfare of the Public
 
D. Secondary Criteria: Ability to Pay; Ability to Attract and Retain Employees; Overall Compensation of Employees; Comparable Communities; Cost of Living; Stipulations of Parties
 
E. Other Factors
 
VII. CONCLUSION
 
0RDER
 
I. INTRODUCTION
 
This is an interest arbitration proceeding under ORS 243.746 between the Lane County Peace Officers' Association (Association), and the Lane County, Oregon Sheriff's Office (County). The Association and the County are parties to a collective bargaining agreement effective July 1, 1993 through June 30, 1995. The agreement was extended through June 30, 1999, by mutual consent of the parties. The agreement covers employees of the Sheriff's Office in positions such as deputy sheriff (patrol and corrections), and communication/records officer. After an election certified by the Oregon Employment Relations Board (ERB) on July 7, 1998, the agreement also applies to juvenile groupworkers employed in the Department of Youth Services. Approximately 300 employees are covered by the agreement.
 
The Association and County have complied with the provisions of ORS 243.746(2) and (3). The parties selected Mark S. Downing (Arbitrator) from a list provided by ERB to serve as their interest arbitrator. On February 10, 2000, the parties submitted their last best offer packages to each other and to the Arbitrator. A hearing was held in Eugene, Oregon on February 24, 2000 by the Arbitrator. The Association and County were afforded full opportunity at the hearing to examine and cross-examine witnesses, and to present any evidence pertinent to the dispute.
 
The parties mailed their post-hearing briefs to each other and the Arbitrator on March 24, 2000. By agreement of the parties, the record was closed on March 27, 2000, upon receipt of the briefs by the Arbitrator. The Arbitrator's award was issued on April 26, 2000. The award selected the County's last best offer package pursuant to ORS 243.746(4).


 
II. APPLICABLE STATUTORY PROVISIONS
 
The findings, opinions and order of the Arbitrator are based on the following statutory provisions:
 
ORS 243.746 Selection of arbitrator; arbitration procedure; last best offers; bases for findings and opinions; sharing arbitration costs.
 
...
 
(4) ... 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. ...
 
 
 
(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) ... 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 findings, opinions and order shall be based on the criteria prescribed in subsection (4) of this section.
 
 
 
243.752 Arbitration decision final; enforcement; effective date of compensation increases; modifying award. (1) A ... decision ... under ORS ... 243.746, if supported by competent, material and substantial evidence on the whole record, based upon the factors set forth in ORS 243.746(4), shall be final and binding upon the parties. ...
 
 
 
III. LAST BEST OFFER PACKAGES
 
 
 
An arbitrator has limited discretion under the Oregon interest arbitration statute. The arbitrator has two choices: 1) Selection of the last best offer package submitted by the union; or 2) Selection of the last best offer package submitted by the employer. In this proceeding, the parties submitted the following last best offer packages: NOTE: [] indicates material bracketed and underlined (strike-out) in original text. ** indicates material underlined in original text.
 
 
 
ASSOCIATION'S LAST BEST OFFER PACKAGE
 
 
 
ARTICLE 6 WORKING CONDITIONS
 
 
 
Section 6.7
 
 
 
Work Schedules
 
 
 
Employees may bid shifts and days off based upon seniority. On or about [the 1st of] November *1st and May 1st*, the employer shall post the shifts necessary for the following [year] *six months* noting the slots for both hours of work and days off. Employees will bid by signing up for the shifts for three-month periods, [in November] for the following [year] *six month period. Beginning as closely as possible with the local university quarter, employees shall sign up by seniority within the facility and/or division of their current assignment.* [Employees on patrol shall sign up by seniority for any position available on patrol, employees in the Jail shall sign up for any position available in the Jail, and employees in the Work Center shall sign up for any position available in the Work Center.] Should additional training or experience be reasonably necessary and not available on the employee's current shift, that employee's shift and days off may be changed to receive the necessary training or experience. At the conclusion of the training or experience period, the employee will be returned to his previous shift. The least senior employee on the corresponding shift may be transferred to accommodate the need to balance the shift complements. Should the shift bidding by seniority result in unbalanced shifts by the basis of the employee experience and ability to perform their jobs, then the Sheriff *or Director* may move the least senior employee possible in order to achieve the balanced shift.
 
 
 
No employee shall be required to work more than one (1) shift in a week.
 
 
 
Section 6.8
 
 
 
*Sheriff's Office* Recall/Callback
 
 
 
A. An employee held over within one (1) hour at the end of his or her regular shift is not considered to be recalled. If the court appearance or preparation time is less than one (1) hour, the employee will be paid only from the end of the employee's regular shift until released from duty or end of court appearance. Employees recalled less than one (1) hour prior to the start of his/her regular shift shall be paid only from the beginning of their recall period until the beginning of their regular shift.
 
 
 
Section 6.28
 
 
 
The COUNTY will not continuously hire temporary help in order to avoid hiring permanent employees. *This provision does not apply to the Department of Youth Services current practice of hiring on-call employees.*
 
 
 
ARTICLE 7 WAGES AND OVERTIME
 
 
 
Section 7.1
 
 
 
*Effective July 1, 1999 the wages for all bargaining unit employees shall be increased by three (3) percent.
 
 
 
Effective July 1, 2000 the wages for all bargaining unit employees shall be increased by an amount equal to the all cities CPI-W, January to January, with a minimum increase of 3% and a maximum of 5%.
 
 
 
Effective July 1, 2001 the wages for all bargaining unit employees shall be increased by an amount equal to the all cities CPI-W, January to January, with a minimum increase of 3% and a maximum of 5%.*
 
 
 
Section 7.2
 
 
 
Those [members who are Deputy Sheriff 1, 2 and Deputy Sheriff Specialists will] *bargaining unit members who have obtained a DPSST certification shall* receive the following certification pay based on the following recognized [BPST] *DPSST* standards[.]:
 
 
 
Advanced Certification 6.0%
 
 
 
Intermediate Certification 3.0%
 
 
 
Those members who are Communications/Records Officers 1, 2 and Communications/Records Specialists and who are assigned for [a full shift] *at least two consecutive hours* to either the Police Services Division Communications Center or the Corrections Division Central Control and Reception will receive a 5.0% premium above their normal rate-of-pay for that shift.
 
 
 
Those employees who must wear plain clothes as part of their regular assignment shall receive six hundred dollars ($600) per annum for clothing allowance.
 
 
 
Any employee who is bilingual in Sign Language or Spanish shall be paid five percent (5%) premium pay.
 
 
 
At an employee's tenth (10th) year anniversary, employee will receive two point five percent (2.5%) premium pay in recognition of the knowledge of the job they have acquired in those years of service. Every fifth (5th) anniversary thereafter, employees shall receive an additional two point five percent (2.5%) premium pay.
 
 
 
Section 7.10
 
Overtime
 
[The COUNTY shall be the sole judge as to the necessity, requirement, and qualifications of personnel to work overtime.] *Overtime shall be authorized by the COUNTY. Involuntary overtime shall normally be offered in order of employee seniority.*
 
ARTICLE 8 INSURANCE
 
Section 8.1
 
Insurance Policies
 
The COUNTY agrees to cover its eligible and qualified permanent probationary and non-probationary employees with [certain] *fully paid* insurance protection and related programs at benefit levels no less than those in effect as of ratification of this agreement plus the improvements as described below. [Should the costs of such programs increase during the first year of this Agreement, or if new or improved benefits are instituted as a result of legislative action, such cost increase shall be covered by the COUNTY whenever such charges become effective.]
 
A. Employee and dependent (*including domestic partner*) health insurance, with major medical services of not less than those currently provided, or, at the option of the employee, a health maintenance plan. [COUNTY contribution to be equal under both plans.]
 
B. Employee and dependent (*including domestic partner*) dental insurance (including adult orthodontic care);
 
C. Employee term life insurance including accidental death and dismemberment in the amount of [$25,000] *$100,000*, or twice the employee's annual salary, whichever is greater;
 
D. Employee occupational life insurance in the amount of $10,000 in accordance with ORS 243.005 through 243.055;
 
E. Employee long-term disability insurance to provide 66-2/3% of gross income after ninety (90) days of disability, not to exceed the limits of the plan; which shall not be decreased during the life of the Agreement.
 
F. Liability insurance or self-funded protection per ORS 30.285;
 
G. Employee and dependent (*including domestic partner*) optical insurance or optical insurance in an amount sufficient for employees to purchase a pair of lens and glasses at a reasonable cost each year.
 
The ASSOCIATION agrees to participate in the Joint Labor/Management Benefits Review Committee. Should this Committee recommend a change in the benefit package to the Board of County Commissioners, the ASSOCIATION agrees to meet and seriously consider the Committee's recommendations.
 
Section 8.6 NEW
 
*Any employee who, as a result of an on-duty exposure, must undergo medical treatment which effectively prevents that employee from working shall be granted time off with pay for the duration of that treatment. Any employee undergoing AZT (and its progeny) treatments as a result of an on-the-job exposure shall receive three weeks off with pay, or longer if medically necessary.*
 


 
Section 8.7 NEW
 
*If an employee is required by the COUNTY to undergo a physical or psychological examination, the COUNTY will bear the expense for the initial exam.*
 
ARTICLE 12 ALLOWANCES AND EQUIPMENT
 
Section 12.11
 
Parking
 
The COUNTY may continue its past practice of charging for parking at work sites, except that free parking will continue at the *main* Lane County Correctional Facility *and the Department of Youth Services, John Serbu Youth Campus.* The COUNTY shall not raise its rates for parking for bargaining unit members during the life of this Agreement.
 
ARTICLE 19 TERM OF AGREEMENT
 
Section 19.1
 
This Agreement shall be effective July 1, [1993] *1999* and shall remain in effect until and including June 30, [1995] *2002*, and thereafter shall continue in effect from year to year, unless one party gives notice in writing to the other party of its intent to terminate or modify the Agreement at least by January 1, [1995] *2002*.
 
Section 19.2
 
If either party serves written notice of its desire to terminate or modify this Agreement, the parties shall commence negotiations by April 1 prior to the expiration of the Agreement except by mutual consent.
 
COUNTY'S LAST BEST OFFER PACKAGE
 
ARTICLE 2 MANAGEMENT RIGHTS
 
Section 2.5 Amend as follows:
 
The COUNTY may utilize volunteers, including reserves, special deputies, posse[,] members, explorers and other volunteers to help assist the COUNTY conduct the COUNTY business as long as such use does not take away compensated opportunities for bargaining unit members. *Consistent with the foregoing, in cases where sheriff's office employees do not volunteer to work overtime, the COUNTY may utilize individuals outside the bargaining unit.* [Specifically, the COUNTY shall not utilize volunteers to perform services for special assignments for which the COUNTY is receiving funds from a contractor for those services. These special assignments include, but are not limited to Marine Patrol, Forest Patrol, and Prisoner Transport.]
 
ARTICLE 6 WORKING CONDITIONS
 
Section 6.7 Amend as follows:
 
Work Schedules
 
*Sheriff's office* [E]*e*mployees may bid shifts and days off based upon seniority. On or about the 1st of November, the employer shall post the shifts [necessary] for the following year noting the slots for both hours of work and days off. Employees will bid by signing up for the shifts for three-month periods, in November for the following year. *Employees in the classification of Communications Records Specialist and Deputy Sheriff Specialist shall bid by classification, and by classification seniority, within a work unit.* Employees on patrol shall sign up by seniority for [any] position available on patrol, employees in the Jail shall sign up for [any] position available in the Jail, and employees in the Work Center shall sign up for [any] position available in the Work Center. Should additional training or experience be reasonably necessary and not available on the employee's current shift, that employee's shift and days off may be changed to receive the necessary training or experience. At the conclusion of the training or experience period, the employee will be returned to his previous shift. The least senior employee on the corresponding shift may be transferred to accommodate the need to balance the shift complements. Should the shift bidding by seniority result in unbalanced shifts by the basis of the employee experience and ability to perform their jobs, then the Sheriff may move the least senior employee possible in order to achieve the balanced shift.
 
No employee shall be required to work more than one (1) shift in a week.
 
Section 6.8
 
Retain current applicability to Sheriff's Office as follows:
 
*Sheriff's Office* Recall/Callback
 
A[n] *Sheriff's Office* employee who, after completing his/her regular work shift, is recalled to report prior to his/her next regular shift for trial preparation, court appearance or for reasons other than personal negligence, shall be guaranteed a minimum of four (4) hours pay at the appropriate regular or overtime rate[.] *as follows:*
 
A. A[n] *Sheriff's Office* employee held over within four (4) hours at the end of his or her regular shift is not considered to be recalled. If the court appearance or preparation time is less than four (4) hours, the employee will be paid only from the end of the employee's regular shift until released from duty or end of court appearance. Employees recalled less than four (4) hours prior to the start of his/her regular shift shall be paid only from the beginning of their recall period until the beginning of their regular shift.
 
B. A[n] *Sheriff's Office* employee recalled on a day off shall be guaranteed a minimum of four (4) hours of pay at the appropriate regular or overtime rate. If an employee is recalled a second time on the same day off within two and one half hours after the expiration of the first four hours of recall, hours paid shall be from the end of the first four hours recall until released from duty, less normal court noon recess. If an employee is recalled a second time on the same day off more than two and one half hours after the expiration of the first four (4) hours of recall, the employee shall be guaranteed a minimum for four (4) hours pay at the appropriate regular or overtime rate. If the employee is recalled a second time on the same day off within the first four (4) hour recall period, hours paid will only be for actual hours worked after the expiration of the first four (4) hours of recall unless released from duty.
 
Section 6.11 Amend as follows:
 
Meal/Rest Periods and Preshift Briefings
 
*Sheriff's office employees, assigned to corrections, shall report for an unpaid preshift briefing 15 minutes prior to their shift and shall have a paid meal period of thirty (30) minutes.*
 
Employees *assigned to patrol duties* shall be given a paid meal period, not to exceed thirty (30) minutes. It is agreed and understood between the parties that the employee's meal period may be interrupted by the COUNTY's reasonable operating needs, and that such employees are thus subject to call during their meal periods.
 
Section 6.14 Amend as follows:
 
Reporting Place
 
Employees shall report to their permanent place of reporting at the designated starting time and shall return to their reporting place so as to be off work by the designated quitting time with approval of their supervisor.
 
Effective from the date employees assigned to the Alma Work Camp first report at that site for duty, such employees shall be paid $200.00 per month per diem. In addition, those employees may utilize the Public Works Shop in Veneta as a park-and-ride facility to the Work Camp. During severe road conditions, the COUNTY will make every effort to provide transportation to and from the park-and-ride facility. Employees who are able to demonstrate a hardship for working at the Alma Work Camp shall be considered for a transfer.
 
*Notwithstanding the foregoing, in no case shall an employee be paid the above per diem for periods in which the employee is on leave or otherwise absent for any reason from the Alma Work Camp for a calendar month or more.*
 
Section 6.23 Delete as surplus (see Article 6.7) and vague:
 
Scheduling Procedure
 
[Employees shall be allowed to select their shifts and days off on the basis of seniority.]
 
Section 6.28
 
Amend current contract to retain application to Sheriff's Office only as follows:
 
The [COUNTY] *Sheriff's Office* will not continuously hire temporary help in order to avoid hiring permanent employees.
 
ARTICLE 7 WAGES AND OVERTIME
 
Section 7.1
 
Increase Sheriff's Office salary schedule by 2% on 7-1-99 and 2% on 7-1-00.
 
Increase Department of Youth Services salary schedule by 2% on 7-1-99 and 2% on 7-1-00.
 
Section 7.4 Delete: Obsolete
 
[Employees who are in classifications in which the entry level salary for the classification has been increased shall be placed on the first step in the new range which will provide at least a 3.0% increase in salary.
 
Employees who are in classifications in which the entry level salary has decreased shall be placed on the first step in the new salary range which does not result in a decrease in salary.]
 
ARTICLE 8 INSURANCE
 
Section 8.1 Amend as follows:
 
Insurance Policies
 
The COUNTY agrees to cover its eligible and qualified permanent probationary and non-probationary employees with certain insurance protection and related programs at benefit levels no less than those in effect as of ratification of this agreement *through July 30, 2000.* [plus the improvements as described below. Should the costs of such programs increase during the first year of this Agreement, or if new or improved benefits are instituted as a result of legislative action, such cost increase shall be covered by the COUNTY whenever such charges become effective.]
 
*Effective August 1, 2000, the COUNTY shall increase its contribution towards the cost of the premiums for each eligible employee for the benefit programs provided by operation of this clause by no more than ten percent (10%). In the event the actual cost of the premiums for such benefit programs exceeds said contribution, the marginal amount shall be shared equally between the COUNTY and each eligible employee. Any employee contributions that may result from this Clause shall be made by payroll deduction.*
 
Section 8.3 Amend as follows:
 
Retirees' Insurance
 
A. Upon retirement, all employees hired on or before July 1, 1987 and who have worked ten (10) full, continuous years prior to age seventy (70), shall be eligible for County-paid health insurance and may transfer from the active group to the retired group, provided such employees are eligible for and receiving PERS benefits.
 
B. Upon retirement, all employees hired between July 1, 1987 and July 1, 1993 and who have worked twenty (20) full, continuous years prior to age seventy (70) shall be eligible for County-paid health insurance and may transfer from the active group to the retired group, provided such employees are eligible for and receiving PERS benefits.
 
C. To qualify for Public Safety voluntary retirement, employees must be defined as Police Officers under ORS 237.121 and ORS 237.610, and be at least fifty (50) years of age. Other employees must be fifty-five (55) years of age or older or receiving benefits under the COUNTY long-term disability program regardless of age.
 
D. *It is understood that annual adjustments, if any, to health insurance benefits of retired employees will be determined in the sole discretion of the COUNTY and may or may not equal those of bargaining unit members.*
 
Section 8.4 Amend as follows:
 
Disability
 
A. Nonoccupational Illness or Injury
 
(1) After completion of six (6) months of employment, if a non-occupational illness or injury exceeds fourteen (14) consecutive days, the COUNTY will provide compensated time off [at the regular rate of pay] for the period following the elimination period specified above [until the employee is released to return to work up to a maximum of ninety (90) from the first day of absence.] *as follows: at the employee's regular rate of pay for the first two (2) weeks, or part thereof, of disability; at ninety percent (90%) pay for the next two (2) weeks, or part thereof; at eighty percent (80%) pay for the next two (2) weeks, or part thereof; at seventy percent (70%) pay for the next two (2) weeks, or part thereof; and at sixty-six and two-thirds percent (66 2/3%) for any remaining disability period until the employee is released to return to work up to a maximum of ninety (90) days from the first day of absence.* Only leave used during the fourteen (14) day elimination period will be charged against the employee's accrued time management balance.
 
...
 
(4) It is understood that disability leave for any reason shall not exceed that period during which the employee is in fact physically unable to return to work *in full capacity,* as substantiated by the employee's physician. *Return to work in a limited duty capacity shall be counted as part of and shall not extend the ninety (90) day eligibility period.*
 
...
 
(6) *Employees who are on disability leave shall not accrue Time Management (Article 9) or holiday time (Article 10.1 - 10.4).*
 
Section 8.7 NEW
 
LCPOA proposed new Article 8.7 is unacceptable. The County does agree that it will bear the cost of physical and psychological exams which it requires, whether initial or second opinion exams.
 
ARTICLE 9 TIME MANAGEMENT
 
Section 9.3 Amend as follows:
 
Accumulation
 
Eligible employees shall accumulate earned leave, based on full-time status, at the following rates:
 
Months of Service / Earned Leave Accumulation / Earned Bi-Weekly Leave
 
*1-12 mos (0-1 yr)* / *20.0 days/yr* / *6.145 hrs/pay period*
 
*13-24 mos (1-2 yrs)* / *23.0 days/yr* / *7.077 hrs/pay period*
 
[0]*25*-48 mos ([0]*2*-4 yrs) / 26.0 days/yr / 8.000 hrs/pay period
 
49-108 mos (4-9 yrs) / 29.0 days/yr / 8.923 hrs/pay period
 
109-168 mos (9-14 yrs) / 32.0 days/yr / 9.846 hrs/pay period
 
169-228 mos (14-19 yrs) / 35.0 days/yr / 10.769 hrs/pay period
 
229-288 mos (19-24 yrs) / 38.0 days/yr / 11.692 hrs/pay period
 
289 mos + (24 + yrs) / 41.0 days/yr / 12.615 hrs/pay period
 
ARTICLE 19 TERM OF AGREEMENT
 
Section 19.1 Two years: July 1, 1999 through June 30, 2001.
 
IV. ISSUES IN DISPUTE
 
The issues in dispute between the parties are framed by their last best offer packages. The Association's last best offer package contained 11 issues:
 
1. Section 6.7 Shift bidding
 
2. Section 6.8 Callback
 
3. Section 6.28 Temporary employees
 
4. Section 7.1 Wages
 
5. Section 7.2 Premium pay
 
6. Section 7.10 Overtime
 
7. Section 8.1 Insurance
 
8. Section 8.6 AZT treatments
 
9. Section 8.7 Medical examinations
 
10. Section 12.11 Parking
 
11. Sections 19.1 & 19.2 Term of agreement
 
The County's last best offer package listed 15 issues as being in dispute between the parties:
 
1. Section 2.5 Volunteers
 
2. Section 6.7 Shift bidding
 
3. Section 6.8 Callback
 
4. Section 6.11 Preshift briefing
 
5. Section 6.14 Alma Work Camp per diem
 
6. Section 6.23 Scheduling procedure
 
7. Section 6.28 Temporary employees
 
8. Section 7.1 Wages
 
9. Section 7.4 Salary schedule placement
 
10. Section 8.1 Insurance
 
11. Section 8.3 Retirees' insurance
 
12. Section 8.4 Disability leave
 
13. Section 8.7 Medical examinations
 
14. Section 9.3 Time management
 
15. Section 19.1 Term of agreement
 
The parties' last best offer packages contain seven joint issues: 1) Shift bidding; 2) Callback; 3) Temporary employees; 4) Wages; 5) Insurance; 6) Medical examinations; and 7) Term of agreement. Twelve additional issues were presented either by the Association's or the County's last best offer package.
 
V. POSITIONS OF THE PARTIES
 
A. The Association
 
The Association argues that its last best offer package should be selected by the Arbitrator, as it provides equitable and consistent pay, benefits and working conditions for all members of the bargaining unit. The Association believes that its last best offer package is fiscally responsible, and will slowly improve the County's standing in relation to its comparables.
 
The Association rejects the County's last best offer package, criticizing it as regressive by taking away already bargained-for rights, and as potentially jeopardizing the safety and welfare of employees and the public. The Association claims that the County's last best offer package makes second-class citizens out of Department of Youth Services (DYS) employees, by creating different working conditions for DYS employees.
 
The Association took the following positions on the 19 issues in dispute in this proceeding:
 
1. Section 2.5 Volunteers
 
The Association proposes current contract language, which allows the County to utilize volunteers as long as such use does not take away compensated work opportunities from bargaining unit members. The Association claims that the County has not proven that a change in current contract language is needed. The Association believes that the County's proposal gives it free reign to use non-unit employees to perform unit work at any time. This raises safety concerns for the Association as in its mind, consistent, permanent and trained employees are necessary to adequately provide public safety services. The Association fears that adoption of the County's proposal could lead to unsafe working conditions for employees. The Association asserts that comparable communities do not have similar contract language.
 
2. Section 6.7 Shift bidding
 
The Association argues that its proposal seeks to codify a Memorandum of Understanding signed by the parties during the term of their expired agreement, which provides for bidding by employees at their current facility and assignment. The County's proposal restricts shift bidding to Sheriff's Department employees only, excluding groupworkers providing security at the DYS's juvenile detention center. The Association rejects concerns voiced by DYS management that new hires would be localized to one shift, as the current contract allows the County to modify shifts after bidding to meet reasonable business requirements. The Association asserts that the County's proposal lacks fundamental fairness, making second-class citizens out of DYS employees. The Association alleges that equal treatment of all unit employees is essential for cohesive labor relations. The Association asserts that the comparables support its shift bidding proposal.
 
3. Section 6.8 Callback
 
Current contract language provides that employees held over within four hours at the end of their shift are not considered to recalled. The Association's proposal would drop this cutoff period to one hour, thus expanding the coverage of minimum callbacks. The County's proposal restricts callbacks to Sheriff's Department employees only. The Association argues that the County's proposal would split the bargaining unit, creating second-class citizens out of DYS employees.
 
4. Section 6.11 Preshift briefing
 
The County's proposal adds a 15-minute unpaid preshift briefing for corrections employees. The Association argues that the County has not proven a business necessity for changing the current self-briefing system, whereby employees exchange information with the individuals they are relieving. The Association warns that the County's proposal has federal Fair Labor Standards Act implications, and maintains that the County has failed to offer any quid pro quofor adding 62.5 more hours to the work year. The Association believes that the comparables do not support the County's proposal.
 
5. Section 6.14 Alma Work Camp per diem
 
The County has proposed language eliminating this per diem if employees are absent from the assignment for one month or more. The Association does not believe that there is a problem in this area, and seeks no change in current contract language.
 
6. Section 6.23 Scheduling procedure
 
The County's proposal deletes this general shift selection language, arguing that it is vague and unnecessary given the detailed provisions of Section 6.7. The Association does not object to the County's proposal.
 
7. Section 6.28 Temporary employees
 
Current contract language does not allow the County to hire temporary employees in order to avoid hiring permanent employees. The County's proposal would exempt DYS employees from this language. The Association proposes the status quo, plus additional language allowing the County to continue its current practice of hiring on-call employees for DYS. Like the County's proposal on section 2.5 concerning the use of volunteers, the Association has safety concerns about this issue. The Association argues that the County's proposal attempts to overrule the 1998 ERB decision including DYS employees in the bargaining unit.
 
8. Section 7.1 Wages
 
The Association proposes a wage increase of 3% retroactive to July 1, 1999, and CPI-based increases on July 1, 2000, and July 1, 2001. Its second and third year CPI-based increases provide for a minimum increase of 3% and a maximum increase of 5%. This formula would generate an increase of 3% on July 1, 2000. The County proposes an increase of 2% on July 1, 1999, and 2% on July 1, 2000.
 
The Association argues that the "interest and welfare of the public" is best served by a competent, well-paid, and highly motivated workforce, especially when that service comes at a reasonable cost to the community. The Association believes that the County should be required to compensate its public safety employees for the inherent risks associated with their profession, so long as the County can pay the Association's wage offer without substantially increasing taxes or sacrificing other programs. The Association disputes the County's claim of inability to pay on two grounds: 1) The County's budget shows an increase in discretionary revenue; and 2) The County's negative financial forecasting is dependent on Congress failing to replace federal timber revenues. The Association believes that the County will not be able to attract and retain qualified employees if the County pays less than the comparables.
 
The Association claims that data from Clackamas, Marion, and Washington Counties demonstrates that the County's wages are 19% behind for a deputy sheriff with five years experience. The Association argued that its wage proposal most closely approximates the cost of living.
 
9. Section 7.2 Premium pay
 
The Association and the County reached agreement on this issue.
 
10. Section 7.4 Salary schedule placement
 
The Association opposes the County's proposal to delete this section, arguing that the section provides the mechanism for DYS groupworkers to move from a 14-step to a 7-step salary schedule plan.
 
11. Section 7.10 Overtime
 
The Association argues that involuntary overtime should normally be offered first to employees with the least amount of seniority.
 
12. Section 8.1 Insurance
 
The Association proposes continuation of fully-paid insurance benefits by the employer. The County's proposal provides for fully-paid insurance benefits only through July 30, 2000. Effective August 1, 2000, the County proposes to increase its contribution level by no more than 10%. If costs exceed the 10% level, the County will share those marginal costs equally with each employee.
 
The Association argues that neither of the other two unions representing County employees have agreed to share in the payment of insurance costs. The Association indicates that the comparables all provide for fully-paid insurance benefits. The Association believes that it is unlikely that the County will reap any financial benefit from its proposal, as selection of either party's proposal should result in fully-paid benefits for employees.
 
13. Section 8.3 Retirees' insurance
 
The County seeks to revise current contract language by adding a provision that health insurance benefits for retirees will be determined solely by the County, and may or may not equal the benefits received by bargaining unit employees. The Association claims that the County offered no explanation in support of its proposal.
 
14. Section 8.4 Disability leave
 
The County's proposal seeks to modify the current contract by decreasing disability leave payments. The Association claims that the County offered no explanation in support of its proposal.
 
15. Section 8.6 AZT treatments
 
The Association proposes a new section covering AZT treatments resulting from an on-the-job exposure. The proposal provides for a minimum of three weeks off with pay if the treatments effectively prevent an employee from working. The Association asserts that a public safety officer who is not performing at 100% creates a safety risk for others.
 
16. Section 8.7 Medical examinations
 
The Association seeks language obligating the County to pay for required physical or psychological examinations. While the County rejects the Association's specific contractual language, the County did agree to bear the costs of physical and psychological exams which it requires.
 
17. Section 9.3 Time management
 
The County's last best offer package proposes a reduction in accrual rates for first and second-year employees. While admitting that the County provides more vacation hours than its comparables, the Association argues for maintenance of the status quo as the County's total compensation is still below average.
 
18. Section 12.11 Parking
 
The Association indicates that both parties' proposals provide for free parking at the main correctional facility and the juvenile justice center.
 
19. Sections 19.1 & 19.2 Term of agreement
 
Under the County's proposal for a two-year agreement, negotiations would begin in November, 2000 for a successor agreement. The Association believes that labor stability would be promoted if its proposal for a term of three years was selected.
 
B. The County
 
The County emphasizes the statutory directive of ORS 243.746(3) and (4) that an award may only be issued on mandatory subjects of bargaining. The County argues that the Association's last best offer package is unenforceable, as it includes numerous permissive subjects. The County maintains that the "interest and welfare of the public" dictates selection of its proposal, as the County is experiencing a serious financial crisis which continues to worsen. In the County's mind, selection of its two-year wage proposal will not significantly erode its total compensation standing among the comparables.
 
The County took the following positions on the 19 issues in dispute in this proceeding:
 
1. Section 2.5 Volunteers
 
The County indicates that there are often more overtime opportunities than employees desire to work. The County claims that its proposal merely allows it to use volunteers if employees are unwilling to work overtime, thus freeing the County from having to order employees to work mandatory overtime. The County dismisses the Association's safety concerns, claiming that it would never use unqualified volunteers.
 
2. Section 6.7 Shift bidding
 
The County argues that the Association's proposal removes current requirements that employees bid within their duty unit and their classification. The County alleges that the Association's proposal would interfere with its desire to have a lead worker on all shifts.
 
3. Section 6.8 Callback
 
The County objects to the Association's proposal as it would impose substantial additional costs on the County.
 
4. Section 6.11 Preshift briefing
 
The County emphasizes that its proposal only requires a 15-minute preshift briefing for corrections deputies, and does not apply to patrol or traffic deputies. The County disputes the Association's contention that its proposal is not in line with the comparables, arguing that the net effect of its proposal is a 7 hour 15 minute work day, as compared to a 7 hour 30 minute day for the comparables.
 
5. Section 6.14 Alma Work Camp per diem
 
The County believes that it makes sense to place limits on this entitlement, in circumstances where an employee is in a non-duty status for a month or more.
 
6. Section 6.23 Scheduling procedure
 
The County challenges the current contract language as being over broad, redundant, and vague. The Association did not object to the County's proposed deletion of this language.
 
7. Section 6.28 Temporary employees
 
The County argues that its proposal allows it to accomplish the same purpose as the Association's proposed language: continuation of DYS's current hiring practices.
 
8. Section 7.1 Wages
 
The County summarized its hold-the-line wage proposal in its post-hearing brief as follows:
 
Lane County's need to reduce and contain expenditures is real and it is immediate. The documentary support for the County's woeful financial condition and uncertain future is compelling.
 
While admitting that its overall compensation is a little low for junior employees, the County adamantly disputes the Association's claim that its wages are substantially behind the comparables. The County maintains that the Association compared salaries from Lane County's entry level classification to salaries from the comparable's journeyman classification.
 
9. Section 7.2 Premium pay
 
The County asserts that this section is not in dispute between the parties.
 
10. Section 7.4 Salary schedule placement
 
The County proposes deletion of this section, as it has no present application.
 
11. Section 7.10 Overtime
 
The County argues that the Association failed to show a compelling need to change current contract language. The County has concerns that the Association's use of the word "normally" will generate grievances.
 
12. Section 8.1 Insurance
 
The County believes that employees should begin to share in paying for this increasingly costly benefit. The County views its cost-sharing formula as very modest. While acknowledging that it has not imposed this proposal on its other bargaining units nor its unrepresented employees, the County argues that these groups of employees have already accepted cost-saving measures, such as a 14-step salary schedule. Employees represented by the Association remain on a 7-step pay plan.
 
13. Section 8.3 Retirees' insurance
 
The County contends that its proposal is merely a restatement of the law, namely that increases, if any, in medical benefits for retirees may be determined unilaterally by an employer.
 
14. Section 8.4 Disability leave
 
The County indicates that its other bargaining units and its unrepresented employees have accepted its proposal to decrease disability leave payments. The County argues that its present benefits in this area are well above the norm.
 
15. Section 8.6 AZT treatments
 
The County argues that the Association's proposal is unnecessary as this topic is already covered by workers compensation insurance, PERS disability benefits, and the County's disability insurance. The County is concerned that the Association's proposal may expose the County to a liability for full pay in perpetuity for an on-the-job injury.
 
16. Section 8.7 Medical examinations
 
The County views this as a non-issue, as it has agreed to pay for any physical or psychological exam that it requires.
 
17. Section 9.3 Time management
 
The County argues that its reduction in accrual rates for first and second-year employees is justified by the comparables, and has already been accepted by its other bargaining units and its unrepresented employees.
 
18. Section 12.11 Parking
 
The Association's proposal on parking is acceptable to the County.
 
19. Sections 19.1 & 19.2 Term of agreement
 
The County proposes a two-year contract, arguing that it is not fiscally prudent to agree to unknown costs (wages and insurance) contained in the third year of the Association's proposal.
 
VI. DISCUSSION
 
A. Interest Arbitration Practice Before 1995
 
Prior to 1995, the Oregon interest arbitration statute provided substantial discretion to an arbitrator in fashioning his or her award. The arbitrator's award was to be based on consideration of the following eight factors:
 
(4) ... the arbitration panel shall base its findings, opinions and order upon the following factors, as applicable:
 
(a) The lawful authority of the employer.
 
(b) Stipulations of the parties.
 
(c) The interest and welfare of the public and the financial ability of the unit of government to meet those costs.
 
(d) Comparison of the wages, hours and conditions of employment of other employees performing similar services and with other employees generally:
 
(A) In public employment in comparable communities.
 
(B) In private employment in comparable communities.
 
(e) The average consumer prices for goods and services commonly known as the cost of living.
 
(f) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays and other excused time, insurance and pensions, medical and hospitalization benefits, the continuity and stability of employment, and all other benefits received.
 
(g) Changes in any of the foregoing circumstances during the pendency of the arbitration proceedings.
 
(h) Such other factors, not confined to the foregoing, which are normally or traditionally taken into consideration in the determination of wages, hours and conditions of employment through voluntary collective bargaining, mediation, factfinding, arbitration or otherwise between the parties, in the public service or in private service.
 
(5) ... the arbitrator shall make written findings of fact and promulgate a written opinion and order ... The findings, opinions and order shall be just and reasonable and based upon the factors prescribed in subsection (4) of this section.
 
B. After SB 750
 
The Oregon interest arbitration community found their world turned upside down by the passage of Senate Bill 750 (SB 750) in 1995. Marcus Widenor, associate professor of the University of Oregon's Labor Education and Research Center, places the passage of SB 750 in the following historical perspective:
 
The year 1995 may be seen in retrospect as a watershed in the history of public employment labor relations in Oregon, not unlike 1973, the year the Public Employee Collective Bargaining Act (PECBA) was passed. The original statute was passed in a year of far-ranging legislative reform enacted by an emboldened Democratic majority in the legislature. Similarly, 1995 marked a swing of the political pendulum, with a Republican majority seeking reform in numerous areas. The resulting 'Derfler-Bryant' Act, SB 750, marks the first systematic reform of the PECBA since its inception.
 
"Introduction", After SB 750: Implications of the 1995 Reform of Oregon's Public Employee Collective Bargaining Act, LERC Monograph Series, Issue No. 14, page 11 (1996).
 
SB 750 has brought radical changes to the landscape of interest arbitration practice in Oregon.
 
The tasks of an interest arbitrator have changed in two significant ways by the passage of SB 750. First, the statute now requires an arbitrator to select either the last best offer package of the employer, or the last best offer package of the union. The arbitrator has no other choices, and cannot mold an award on an issue-by-issue basis to fit the facts of a particular situation. Second, the criteria or factors used by an interest arbitrator to make his or her decision have changed, and the statute now assigns priorities to these statutory criteria.
 
It is instructive to examine the legislative history of SB 750 in order to determine the intent and meaning of these changes. Henry H. Drummonds, associate professor of law at Northwestern School of Law, Lewis & Clark College, Portland, Oregon, discussed the legislative history of SB 750 by comparing the initial version of SB 750 to the final bill that was adopted by the legislature. The initial version of the bill proposed a system of multiple priorities for the statutory criteria. Drummonds states as follows:
 
The first priority was the 'interest and welfare of the public *as determined by the governing body of the public employer.*' Also at the first level of priority was 'financial ability of the unit of government to meet [proposed] costs, without requiring the reduction of programs or staff and giving due consideration and weight to the other services provided by, *and the other priorities of the unit of government.*'
 
"A Case Study in the ex Ante Veto Negotiations Process: The Derfler-Bryant Act and the 1995 Amendments to the Oregon Public Employee Collective Bargaining Law", After SB 750, supra, page 52. [Emphasis by italics (shown here between **) and [explanation] in original text.]
 
After the first priorities of public interest and ability to pay, Drummonds explained that the second proposed priority in the bill was "the ability ... to attract and retain qualified personnel." The initial version of the bill listed "overall compensation" of the employees as the third level of priority. Fourth ranking was given to "comparison of the overall compensation of other employees performing similar services ..." Comparability was limited to Oregon employers in communities with "nearly the same population" that were within the "geographic labor market of the public employer." After considering fifth and sixth levels of priorities (which were not included in the final version of the bill), the arbitrator could consider the Consumer Price Index and the "stipulations of the parties." The initial version of the bill deleted the "other factors" criteria.
 
As contrasted to the initial version of SB 750, the final bill adopted by the legislature made major changes concerning the statutory criteria for interest arbitration. The multiple levels of priority were reduced to two priorities. First priority would be given to "the interest and welfare of the public." The modifying phrase "as determined by the governing body of the public employer" was deleted, giving the arbitrator discretion to decide the value of this factor. Secondary priority would be given to six criteria: 1) Ability to pay; 2) Ability to attract and retain employees; 3) Overall compensation of employees; 4) Comparable communities; 5) Cost of living; and 6) Stipulations of parties. The arbitrator would be free to assign relative weights to these criteria. The final bill stated that the traditional "other factors" criteria could not be used by the arbitrator, if the first and secondary priorities provided sufficient evidence to make a decision.
 
In addition to demoting "ability to pay" to a secondary priority, the final bill amended this criteria to read "reasonable financial ability ...", which provides an arbitrator with further discretion. The final bill defined the term "comparable" as "limited to communities of the same or nearest population range within Oregon", thus broadening the more restrictive definition in the initial version of the bill.
 
C. Interest and Welfare of the Public
 
After SB 750, interest arbitrators must give first priority to the "interest and welfare of the public". What is the meaning of this term? The authors of SB 750 failed to define the "interest and welfare of the public". Their inaction has left a cold trail for arbitrators to follow in determining the meaning of this term.
 
The pre-SB 750 statute defined the "interest and welfare of the public" as follows:
 
(c) The interest and welfare of the public and the financial ability of the unit of government to meet those costs.
 
Thus, the "interest and welfare of the public" was closely linked to an employer's ability to pay the costs of a union's proposal.
 
The initial version of SB 750 continued the linkage of the "interest and welfare of the public" and an employer's ability to pay. These two criteria were first-level priorities that an arbitrator was required to consider in rendering a decision.
 
The final version of SB 750 broke the linkage between the "interest and welfare of the public" and an employer's ability to pay. The "interest and welfare of the public", absent any consideration of an employer's financial situation, became the first priority for interest arbitrators to consider.
 
How has the term "interest and welfare of the public" been interpreted by interest arbitrators since the passage of SB 750? The Association and County provided the Arbitrator with four interest arbitration awards. Those awards are listed as follows:
 
City of Eugene and Eugene Police Employees Association, (Keltner, 2000).
 
City of Oregon City and Oregon City Firefighter's Association, Local 1159, (Abernathy, 1999).
 
Clackamas County and Clackamas County Peace Officers Association, (Dorsey, 1998).
 


 
Deschutes County and Deschutes County Sheriff Association, (Lankford, 1996).
 
All of these awards were issued after the passage of SB 750.
 
In Deschutes County, Arbitrator Lankford initially rendered "findings of fact" on each of the six secondary criteria of the statute. Lankford justified this order of presentation by indicating that although the statute requires that first priority be given to the "interest and welfare of the public", making a determination on this factor is not purely a factual consideration. He reasoned that hard data is only available to determine the secondary criteria. In his discussion concerning the "interest and welfare of the public", Lankford stated:
 
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.'
 
[Emphasis by italics (shown here between **) in original text.] Deschutes County, page 19.
 
Lankford drew two conclusions from his analysis. One, the secondary criteria are to be viewed in light of the "interest and welfare of the public", which is the final goal of the interest arbitration process. Two, none of the secondary criteria are to be exalted over the "interest and welfare of the public".
 
In Clackamas County, the employer argued that an interest arbitrator must follow the public policy choices made by the employer. The union took the position that the "interest and welfare of the public" could only be determined by applying the statute's secondary criteria. Arbitrator Dorsey agreed with the employer's arguments, quoting as follows from statements presented by the employer's attorney:
 
[The] 1995 legislature intended to establish a standard of deference by arbitrators towards the public policy choices made by public officials and by the people. ... it is appropriate for arbitrators operating under this law to consider what public officials have decided is in the public interest, and to give some deference to those determinations.
 
Clackamas County, page 8.
 
Arbitrator Dorsey stated the following reasoning for his award:
 
Accordingly, the Arbitrator's analysis starts with the assumption that the county's last best wage offer is in the interest and welfare of the public and his consideration of the secondary criteria will be limited to whether the association's interpretation and application of any of these criteria must force him to a different conclusion.
 
Clackamas County, page 8.
 
The Associations's evidence concerning the secondary criteria did not persuade Dorsey to alter his assumption.
 
Another interpretation of the term "interest and welfare of the public" was contained in Arbitrator Abernathy's City of Oregon City decision. He noted that neither the authors of SB 750 nor the Oregon courts have defined the term "interest and welfare of the public". In discussing this term, Abernathy focused on what the parties had agreed was the critical issue in the case: health insurance. The language of the parties' collective bargaining agreement required the employer to maintain the same level of benefits as in its current insurance plan. However, that plan would no longer be available approximately four months after the arbitrator's award, and no other health insurance carrier had expressed interest in underwriting a comparable plan.
 
The union's last best offer allowed the employer to change insurance carriers, but only if such change did not result in a reduction of benefits. Other unions in the City had already agreed to language similar to that being proposed by the City, namely that if there was a need to change insurance plans or carriers, the City and union would jointly meet and review the coverage proposed by the new carrier(s). Arbitrator Abernathy defined the term "interest and welfare of the public" in the following manner:
 
Clearly the Union's final offer package is in the best interests of the 18 members of this bargaining unit. That does not, however, make it in the best interests of the public. The interest and welfare of the Oregon City community is different and larger than the special interest of the Firefighter's bargaining unit. Quality service at the lowest cost is the Community's basic interest.
 
City of Oregon City, page 15.
 
Abernathy concluded that it would not be in the "interest and welfare of the public" to award the union's last best offer package because it would place the employer in an impossible situation with respect to selecting a new insurance carrier and program. He did not find it necessary to address secondary criteria, given his findings and conclusions on the primary criteria of "interest and welfare of the public".
 
The struggle by interest arbitrators in interpreting the term "interest and welfare of the public" continued in City of Eugene, where Arbitrator Dorsey stated as follows:
 
Interest and welfare of the public
 
There is inadequate definition of this criteria in both the legislative action and the ERB rules. Examination of the history of the legislation gives no clear cue as to just what this criteria was intended to mean. However, we may be guided in the instant matter by the Black's Law Dictionary [Revised Fourth Edition, West Publishing Co. (1968)]:
 
Public Interest is defined as
 
'Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights and liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question.'
 
Public Welfare is defined as
 
'The prosperity, well-being, or convenience of the public at large, or of a whole community, as distinguished from the advantage of an individual or limited case ... it embraces the primary social interests of safety, order, morals, economic interest, and non-material and political interests ... In the development of our civic life, the definition ... has also developed until it has been held to bring within its purview regulations for the promotion of economic welfare and public convenience.'
 
By the above definitions we may infer that any and all issues regarding a contract between a City and its Police Force totally involves the public welfare because the Police Department as a whole exists for the convenience of the public at large in the interest of safety, order, morals, economic interest, and non-material and political interests. ... a Police contract with a City affects the public welfare and the public welfare is also affected by the personal welfare of the officers the City employs to carry out its mission.
 
Consequentially, essential elements of 'Public Welfare' are included in the secondary level of the criteria. Accordingly, to the degree that the parties' positions meet the secondary standards they also serve the 'Public Welfare.'
 
City of Eugene, page 6.
 
Arbitrator Dorsey proceeded to analyze each issue in light of the secondary criteria, to determine how these issues affected the "interest and welfare of the public". He concluded that more of the issues in the union's last best offer package met the statutory criteria than the issues contained in the employer's last best offer package.
 
Not surprisingly, given the dearth of direction provided by the authors of SB 750, the afore-referenced arbitrators lack consensus on how to determine the "interest and welfare of the public". Arbitrators have also taken a scholarly approach to analyzing the meaning of the "interest and welfare of the public". In "Last Best Offer - Total Package: Oregon's New Form of Interest Arbitration", Arbitrators Abernathy and Tim Williams tackled the new set of statutory criteria. They indicated that as the pre-SB 750 law combined the "interest and welfare of the public" with the financial ability of the employer to meet costs, arbitrators generally regarded this factor as the ability to pay. They noted that the new first priority of the "interest and welfare of the public" is not linked to an employer's ability to pay.
 
Abernathy and Williams view the new wording of the "interest and welfare of the public" criteria in the following manner:
 
In the most general terms, the interest and welfare of the public is something that affects the community as a whole or the majority of that community.
 
"Last Best Offer", After SB 750, supra, page 103.
 
In explaining the legislative history of SB 750, Professor Drummonds noted as follows:
 
Both the Governor [John Kitzhaber, Democrat] and the Republican leadership believed amendments to the PECBA could serve the broader public interest, as well as the interests of public-sector management, public employees, and public-sector labor unions.
 
"A Case Study", After SB 750, supra, pages 25-26.
 
In a footnote to the term "broader public interest", Drummonds referenced goals that the founders of our country embraced for a civic and political life devoted to the "common good", including broader or community interests.
 
The authors of SB 750 have revolutionized the meaning of the term "interest and welfare of the public" for the Oregon interest arbitration community. The "interest and welfare of the public" is no longer tied to a public employer's ability to pay. After SB 750, the "interest and welfare of the public" must be viewed in the broader perspective of all of the citizens of a community, not just the views of the public employer or the union representing the public employees. The question becomes: How would selection of the union's last best offer package, or the employer's last best offer package affect the citizens of a community?
 
How should the "interest and welfare of the public", viewed from a community perspective, be measured? Arbitrators Abernathy and Williams suggest that public opinions polls or surveys can be taken. However, they point out some pitfalls to this method, including: 1) Who prepares the survey and their qualifications; 2) What questions are asked and whether the questions are field-tested; 3) Who responds to the survey: the entire community, or a representative sample; and 4) Was the survey done more than once so trends could be ascertained.
 
What evidence did the Association and County present in this proceeding regarding the "interest and welfare of the public"? The County offered the final report of the Future Focus Task Force, issued on April 8, 1998. The County Board of Commissioners appointed the task force to answer the following charge:
 
1. Is Lane County providing the correct mix of services at the present time?
 
2. Are there other services that Lane County should provide?
 
3. How should the County pay for the services?
 
The task force, comprised of local community leaders, analyzed the County's financial situation and studied the County's current level of services, including public safety programs. The task force's report summarized the County's financial condition as follows:
 
Lane County's 1998 discretionary General Fund revenue is $9.3 million less than it was in 1991. This is due primarily to reductions in the two main revenue sources, O&C [Oregon and California Railroads land] timber receipts and property taxes. In 1993, Congress stabilized the volatile O&C revenue paid to counties at 85% of the previous five year average and continues to reduce payments by an additional $423,535 per year through 2004. In 1997, Oregon voters passed Measure 50 to roll back assessed values, thereby reducing property tax revenues to the county by $2.8 million.
 
Because of the county's historic reliance on O&C revenues over the last 61 years [nearly one quarter of the County's discretionary General Fund budget], Lane County's property tax rate was found to be substantially lower than similar sized Oregon counties ...
 
[Chart inserted comparing Lane County's property tax revenue to that of three 'comparable counties': Clackamas, Marion, and Washington. Lane County's property tax revenue for FY 97/98 was $17.8 million. The average revenue during the same time period for the comparable counties was $43.9 million, nearly 2 ½ times that of Lane County.]
 
The outlook over the next six years indicates projected revenues appear to be sufficient to fund the current level of county services, but they do not fund the following critical, additional service needs ...
 
The long range outlook is even more grim with an expected loss of an additional $4 million in O&C revenue beginning July 1, 2004, due to the anticipated expiration of the federal timber guarantee.
 
The task force report indicated that the County had responded to its revenue shortfalls by making staffing reductions every year since FY 91/92. The report noted that cumulative cuts through FY 97/98 totaled $8.9 million, resulting in the elimination of over 150 full-time positions.
 
The task force report drew the following conclusions concerning the level of current services provided by the County:
 
The Task Force did not identify any services currently provided by the County that are obviously inappropriate. Nor did it find any significant inefficiencies in the delivery of county services. On the contrary, the Task Force found that, over time, virtually all county services have been reduced to an anemic, and under funded, level.
 
The task force did not recommend any reductions in the levels or kinds of services currently provided by the County.
 
The report described the status of the County's public safety programs in the following manner:
 
One of the most fundamental and important services that government can provide is that of public safety. Lane County, with an area the size of Connecticut [54% of area is non-taxable federal forest land], has the responsibility for providing for the incarceration of suspects for the entire population. Other critical elements within the public safety area are criminal prosecution, police patrols, offender treatment, juvenile detention, and parole and probation.
 
The finding of this committee is that the resources available to do these critical tasks are insufficient to do the job that needs to be done. Even though the county spends more that 66% of the available discretionary revenue to support these needs, significantly more money is needed to properly protect the public. To make matters worse, the available discretionary funds are declining each year.
 
The task force concluded its report by recommending that the County seek voter approval for a public safety levy, as the public had supported similar levies on four separate occasions in recent years to provide additional resources for public safety programs.
 
The County Board of Commissioners endorsed the recommendations of the task force and placed a five-year serial property tax levy and bond, known as Ballot Measures 20-05 and 20-06, on the November, 1998 ballot. Voters rejected these measures. Commissioners placed another tax increase for law enforcement activities on the ballot in November, 1999. Known as the "Safer Communities" proposal, this charter amendment would have placed a surcharge on state personal and corporate income taxes. This proposal was also rejected by voters.
 
The Association acknowledges that interest arbitration awards after SB 750 have lacked consistency as to the meaning of the term "interest and welfare of the public". The Association advocates a meaning for this term that embraces the provision of quality services at a reasonable price. The Association maintains that most awards after SB 750 have determined the "interest and welfare of the public" by applying a balancing test to the six secondary criteria. The Association supports a similar analysis in this proceeding, with particular emphasis on comparable communities. The Association believes that the County has the financial ability to pay competitive wages.
 
The County would similarly have the Arbitrator apply a balancing test to the secondary criteria in determining the "interest and welfare of the public". However, the County's analysis would focus on different criteria: 1) ability to pay; and 2) ability to attract and retain qualified personnel. The County has grave doubts about the enforceability of the Association's last best offer as it contains permissive subjects of bargaining. The County argues that for this reason alone, it is not in the "interest and welfare of the public" to select the Association's offer.
 
D. Secondary Criteria
 
After giving first priority to the "interest and welfare of the public", the statute instructs an interest arbitrator to consider six secondary criteria. These criteria are discussed below in their order of importance to the Arbitrator's decision.
 
Ability to Pay
 
The statute requires consideration of the County's reasonable financial ability to meet the costs of the Association's last best offer package. Costs for the first two years of the Association's proposal are $315,000 higher than the County's proposal. The gap between the parties' proposals rises even further when costs for the Association's third year are factored in.
 
The County's cry of poverty is supported by credible evidence. Total County revenues for FY 99-00 declined by $1.4 million. Revenues are projected to decrease by $1.5 million in FY 00-01, and another $1.1 million in FY 01-02. At the same time, expenses for personnel services increased by $1.7 million in FY 99-00, and are projected to increase by $1.3 million in FY 00-01. The County incurred two major increases in personnel costs during FY 99-00, the first year in dispute for the Arbitrator's decision: 1) PERS contributions increased by 74%, or $700,000; 2) Health insurance premiums increased by 17%, or $270,000. The County's PERS contribution jumped from 7.82% to 13.16% of salary, an increase of 5.34%. This item is estimated to increase another 14% in FY 00-01, or $235,000. The County's contribution for health insurance increased in FY 99-00 by $74 a month, or approximately 2% of salary. This cost is estimated to increase another 11.7% in FY 00-01, or $210,000.
 
The County's financial picture shows no sign of improvement over the next couple of years. O&C revenues are declining by over $400,000 per year. While Congress is considering legislation to give the County some relief in this area, no legislation has been passed. That possible aid is merely a hopeful sign on the horizon.
 
Ability to Attract and Retain Employees
 
The Arbitrator must consider the employer's ability to attract and retain qualified personnel at its present wage and benefit levels. The County presented statistical data from two of the three comparables. The data included information on the average years of seniority for deputy sheriffs, and the number of applications, open positions, and resignations for each bargaining unit. It does not appear from a review of this data that the County is experiencing a low number of applicants for available openings, or a high rate of employee turnover.
 
Overall Compensation of Employees
 
The statute requires consideration of the overall compensation presently received by employees. The Association and the County differed in their approaches to calculating this criteria. The Association utilized six components: 1) Base wage; 2) Automatic incentives; 3) Paid retirement pickup; 4) Vacation; 5) Holidays; and 6) Insurance contribution. The County agreed with the Association's methodology for the first five components. However instead of insurance contribution, the County used "employer PERS contribution" as its sixth component.
 
The statute defines "overall compensation" as including: 1) Direct wage compensation; 2) Vacations; 3) Holidays; 4) Other paid excused time; 5) Pensions; 6) Insurance; 7) Benefits; and 8) All other direct or indirect monetary benefits. The Association's six components all fall within the statutory definition. At first glance, the employer's sixth component also appears to qualify under the definition. However, the statute requires consideration only of the compensation presently received "by the employees".
 
Thus, overall compensation must be viewed from an employee perspective. An employee receives certain benefits through the County's PERS contributions. Although the County's PERS contributions are higher than those paid by the comparables, employees in all of these jurisdictions receive the same pension benefits. It is not appropriate to include the County's PERS contributions in calculating the overall compensation received by employees. The Arbitrator adopts the Association's methodology for determining overall compensation.
 
The data submitted by the parties for base wages, the first component of overall compensation, was widely divergent. The Association listed the monthly base wage of a Lane County deputy sheriff with five years of service as $3214. The County submitted a salary of $3550 for the same comparison. The County's figure included its proposed first-year wage increase of 2%. The County claims that the Association's number is for Lane County's entry level classification, not the journeyman classification.
 
The evidence presented by the parties on wages was far from ideal. A current salary schedule was not admitted into the record. The most recent salary schedule submitted by the parties became effective on July 1, 1993. However, the Arbitrator was able to calculate current wage levels from evidence indicating various wage increases received by unit employees since 1993. That evidence supports the data submitted by the County for current base wages of employees.
 
The parties also disagreed on how to calculate data for automatic incentives. When viewed at 5, 10, 15, and 20 years of service, the parties' data only coincided at the 5-year level. As to the third and fourth components of overall compensation, the parties agreed that Lane County does not have a paid PERS "pickup", and on vacation benefits received by employees. The parties disagreed as to calculations on the value of Lane County's holiday benefits, but agreed that employees make no contribution for insurance premiums. Given the record provided by the parties, the Arbitrator resolves these disagreements in favor of the data provided by the County.
 
Comparable Communities
 
Comparability in the interest arbitration statute is based on looking at the overall compensation of employees performing similar services in "comparable communities." The statute defines a comparable community as one with the "same or nearest population range within Oregon."
 


 
The parties' positions on comparables took a somewhat windy route. The Association's pre-hearing brief, which was presented at the hearing, argued two sets of comparables. The first included Clackamas and Marion Counties, as they are the nearest in population to Lane County. The second added Jackson and Washington Counties, if the Arbitrator felt the need for a broader base of comparison. The populations of these jurisdictions are as follows:
 
Washington County 404,750
 
Clackamas County 326,850
 
Lane County 315,700
 
Marion County 275,250
 
Jackson County 174,550
 
The Association would use either two or four counties as its comparables.
 
The County's position at hearing was that only three counties were comparables: Washington, Clackamas, and Marion. Jackson County was not on the County's list. This position was consistent with the comparables used in the report of the task force. However by the time of their post-hearing briefs, the parties' positions had changed. In those briefs the Association urged adoption of its second set (four comparables) with the deletion of Jackson County, while the County advocated the addition of Jackson County to its original list of three.
 
Population is the one and only driving force for deciding comparable communities. The Arbitrator adopts as comparables the position taken by the Association in its post-hearing brief, and the position taken by the County at the hearing. Jackson County is not a good comparable for Lane County. The best comparable for Lane County is Clackamas County. The population of Clackamas County is only 4% more than Lane County. The next-best comparable is Marion County, as its population is only 13% below that of Lane County. The parties agree that Washington County is a comparable. Its population exceeds that of Lane County by 28%. However, the population of Jackson County is significantly (45%) below that of Lane County. Stated conversely, Jackson County has barely half the population of Lane County. Exclusion of Jackson County is consistent with the statute's emphasis on populations in the "same or nearest" range.
 
The County supplied monthly overall compensation data for the comparables. That information, when combined with the County's July 1, 1999 wage offer, provides the following picture:
 
DEPUTY SHERIFF - 5 YEARS OF SERVICE
 
Jurisdiction / Base Wages / Auto.Inc. / PERS Pickup / Vac. / Hol. / Total Comp.
 
Clackamas / $3661 / $264 / 6% / $289 / $155 / $4605
 
Marion / $3634 / $140 / 0% / $168 / $154 / $4096
 
Washington / $3916 / $0 / 6% / $181 / $181 / $4513
 
Average / $3737 / $135 / 4% / $213 / $163 / $4405
 
Lane / $3550 / $0 / 0% / $358 / $155 / $4063 / - 7.8%
 


 
DEPUTY SHERIFF - 10 YEARS OF SERVICE
 
Jurisdiction / Base Wages / Auto.Inc. / PERS Pickup / Vac. / Hol. / Total Comp.
 
Clackamas / $3848 / $317 / 6% / $349 / $155 / $4919
 
Marion / $3818 / $197 / 0% / $220 / $154 / $4389
 
Washington / $3916 / $0 / 6% / $271 / $181 / $4603
 
Average / $3861 / $171 / 4% / $280 / $163 / $4637
 
Lane / $3727 / $93 / 0% / $376 / $163 / $4359 / - 6.0%
 
DEPUTY SHERIFF - 15 YEARS OF SERVICE
 
Jurisdiction / Base Wages / Auto.Inc. / PERS Pickup / Vac. / Hol. / Total Comp.
 
Clackamas / $3848 / $317 / 6% / $377 / $162 / $4954
 
Marion / $3818 / $197 / 0% / $264 / $162 / $4441
 
Washington / $3916 / $0 / 6% / $316 / $181 / $4648
 
Average / $3861 / $171 / 4% / $319 / $168 / $4681
 
Lane / $3727 / $185 / 0% / $376 / $163 / $4451 / - 4.9%
 
DEPUTY SHERIFF - 20 YEARS OF SERVICE
 
Jurisdiction / Base Wages / Auto.Inc. / PERS Pickup / Vac. / Hol. / Total Comp.
 
Clackamas / $3848 / $317 / 6% / $393 / $162 / $4970
 
Marion / $3818 / $197 / 0% / $308 / $162 / $4485
 
Washington / $3916 / $0 / 6% / $361 / $181 / $4693
 
Average / $3861 / $171 / 4% / $354 / $168 / $4716
 
Lane / $3727 / $280 / 0% / $376 / $163 / $4546 / - 3.6%
 
These tables indicate that deputy sheriffs employed by Lane County receive overall compensation from 3.6% to 7.8% below employees performing similar services in comparable communities. If the same tables are constructed using data supplied by the Association (which differs for automatic incentives, vacations, and holidays), Lane County deputy sheriffs are 5.9% to 8.5% below their comparables.
 
To its credit, the County has placed a greater emphasis on salaries for deputy sheriffs in recent years. Salaries for non-unit County employees increased by 5% during FY 97-98, and FY 98-99. During the same time period, base wages for deputy sheriffs increased by 7.7%. These increases compare favorably to the 5.5% wage increases received by deputy sheriffs in Clackamas County during the same time period. This comparison is of importance as Clackamas County pays the highest base wages of the comparables.
 
On the other hand, deputy sheriffs in all of the comparables received wage increases greater than 2% in FY 99-00. Employees in Clackamas County received 2.5%, while employees in Marion County received 2% on July 1, 1999, and 2% on January 1, 2000. Employees in Washington County received a CPI-based increase (minimum 2.5%, maximum 5.5%) plus 1% on July 1, 1999. While the specific CPI data was not placed in evidence, this formula generated an increase of at least 3.5%. On an average, deputy sheriff salaries increased by 3.33% in FY 99-00 for the comparables. With only a 2% increase on July 1, 1999, Lane County is not keeping up with the comparables.
 
The comparables have not reached agreement with their unions for FY 00-01 wage increases. However, Lane County's minimal increase of 2% for FY 00-01 will likely result in its employees falling further behind the comparables. The overall compensation of comparable communities strongly favors selection of the Association's last best offer package.
 
Cost of Living
 
The statute mandates that the Arbitrator use the CPI-All Cities Index to measure the cost of living. No cost of living evidence was presented by the parties for the January, 1999 index, so the Arbitrator cannot draw any cost of living conclusion for the County's 2% increase effective July 1, 1999. The Association indicated in its pre-hearing brief that the All Cities Index for January, 2000 was 2.8%. Thus, the Association's CPI-based wage proposal for July 1, 2000 would result in the minimum increase of 3% in its formula. The County's 2% increase for July 1, 2000 will not allow employees to keep up with the effects of inflation.
 
Stipulations of Parties
 
The Association and the County did not present any formal stipulations to the Arbitrator. However from reviewing their last best offer packages, it appears that the parties are in agreement on four issues: 1) Section 6.23 - Scheduling procedure; 2) Section 7.2 - Premium pay; 3) Section 8.7 - Medical examinations; and 4) Section 12.11 - Parking.
 
E. Other Factors
 
Parties traditionally take factors other than the "interest and welfare of the public" and the six secondary criteria into consideration in determining wages, hours, and other terms and conditions of employment. However the statute cautions interest arbitrators against using such other factors, if the "interest and welfare of the public" and the secondary criteria provide sufficient evidence for an award. The Arbitrator finds that there is ample and sufficient evidence for his decision without consideration of the "other factors" criteria.
 
VII. CONCLUSION
 
Interest and Welfare of the Public
 
The interest arbitration statute separates the "interest and welfare of the public" from the six secondary criteria. An interest arbitrator must initially give primary and separate consideration to the "interest and welfare of the public". The "interest and welfare of the public" cannot be equated with a mere balancing of the secondary criteria. The "interest and welfare of the public" includes information from community members concerning the issues in dispute between the parties.
 
Lane County voters in recent years have twice rejected tax increase ballots for law enforcement activities. Votes such as these demonstrate the level of importance that community members attach to certain public services. It is not in the "interest and welfare of the public" to impose higher costs on the County at this time, given the County's difficulty in passing bonds and levies, and the uncertainty of relief efforts by Congress to replace declining O&C revenues. The Arbitrator finds that it is in the "interest and welfare of the public" to select the last best offer package of the County.
 
Secondary Criteria
 
The Arbitrator has also considered the six secondary criteria. The two criteria of ability to pay, and ability to attract and retain employees, favor selection of the County's last best offer package. The County's finances are in poor shape, and at least for now, the County is not experiencing problems in attracting and retaining qualified personnel. The two criteria of overall compensation presently received by employees, and the overall compensation of comparable communities, favor selection of the Association's last best offer package. The County's overall compensation will likely fall behind the comparables by between 4% to 8%, depending on an employee's years of service, by the end of this 1999-2001 agreement. The two criteria of cost of living, and the stipulations of the parties, do not favor either the Association or the County.
 
The Arbitrator finds that it is appropriate to give greater weight to certain secondary criteria. At the present time, the County's inability to pay supercedes the importance of the overall compensation paid by the comparables. The length of the parties' agreement favors the County's proposal. Given the County's current financial state, a two-year agreement with definite costs is preferable to a three-year agreement with unknown costs for the third year. However, if the County's finances were slightly better, the secondary criteria would support the Association's proposal. The Arbitrator finds that the secondary criteria favor selection of the last best offer package of the County.
 
ORDER
 
Based upon the competent, material and substantial evidence on the whole record, it is the decision of the Arbitrator to select the last best offer package of the County pursuant to ORS 243.746(4).
 
Issued at Olympia, Washington, this 26th day of April, 2000.
 
MARK S. DOWNING, Arbitrator
 
REPRESENTING THE ASSOCIATION: Rhonda Fenrich, Attorney at Law
 
REPRESENTING THE COUNTY: Patrick J. Mosey, Attorney at Law