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In the Matter of the Arbitration between NEWPORT POLICE ASSOCIATION (Union) And CITY OF NEWPORT(Employer). IA-07-05.
The City of Newport (City or Employer) and the Newport Police Association (Association or Union) were parties to a collective bargaining agreement that expired on June 30, 2004. The parties were unable to reach a settlement on all terms of a successor agreement. They submitted their remaining issues to interest arbitration pursuant to ORS 243.746. A hearing was held on January 4, 2006 before Arbitrator Kathryn T. Whalen at Newport, Oregon. The parties elected to make closing arguments after evidence was received. The record was closed on January 4, 2006.
The parties submitted four issues to arbitration: (1) term of agreement, (2) wages, (3) premium pay for the City employee performing Evidence Technician duties, and (4) insurance (language issue).
The City’s Last Best Offer (LBO) proposes a two year agreement (expiration June 30, 2006) with a wage increase of 2.5% effective July 1, 2004 and another 2.5% effective July 1, 2005. The Association’s LBO proposes a three year agreement (expiration June 30, 2007) with wage increases as follows: July 1, 2004, 2.6%; July 1, 2005, 3.1 %; July 1, 2006, 3.0% and January 1, 2007, 2.3%.
The Association proposes that the bargaining unit employee currently performing the work of Evidence Technician be paid a 2.5% premium. The City proposes no premium for this work.
The City proposes to delete the phrase "or better than" from the insurance provision of the Agreement which provides in relevant part the "City will make available to eligible employees in the bargaining unit (and their eligible dependents) medical, dental and vision insurance benefits substantially equal to or better than those currently available * * *." (Emphasis added.) The Association proposes the status quo.
The parties’ respective positions and arguments will be addressed in the Arbitrator’s findings and opinion.
ORS 243.746 (4) provides in relevant part:
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 an 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 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.
The City is located on the central Oregon coast and is the County seat for Lincoln County. The City’s current population is 9,924. Exhibit A-8 (a). It is governed by a Council/Manager form of government. The City’s elected Mayor and six elected Council members are all non-paid volunteers.
The City is a full service municipality and provides the following services: police, fire, library, parks and recreation, water, wastewater, streets, engineering, planning and community development, and a municipal airport. It employs approximately 100 full-time regular status employees. Exhibit E-1.
The Police Department is headed by Chief of Police Mark Miranda who reports to the City Manager. The Police Department consists of 21 sworn positions, but the Department is currently down by two such positions. In 2005, the City rehired one retired police officer, Michael Iverson, under a memorandum of understanding to help meet current minimum staffing levels. Exhibit A-6. The Department also employs four non-sworn employees. The Association’s existing
bargaining unit includes 18 employees, 15 sworn and 3 non-sworn. Exhibit A-7.
The parties’ prior collective bargaining agreement was of three-year duration: July 1, 2001 through June 30, 2004. Exhibit A-1. This agreement was executed on August 21, 2002 after receipt of an interest arbitration award from Arbitrator Jack Calhoun in July of 2002. Exhibit A-2. The 2002 interest arbitration concerned the issues of wages and the implementation date of certification pay.
Application of the Statutory Factors to the Last Best Offers
ORS 243.746(4) requires the arbitrator to give first priority to the interest and welfare of the public when evaluating the parties’ LBOs. As recognized by other arbitrators, this factor is not well-defined. Standing alone, it is insufficient to decide this case. Rather, based upon the evidence and arguments presented, it is necessary to consider secondary factors in order to determine which LBO better satisfies the interest and welfare of the public. The Arbitrator finds the Association’s LBO is more consistent with, and favored by, the relevant statutory factors.1 The following is my reasoning.
1. ORS 243-746 (4) (g) and (h) are not relevant to this case.
Issues 1 and 2: Term of Agreement and Wages
According to the City, the pivotal issue in this case is the term of the Agreement. In essence, this issue is one about wages, because the contract term will dictate whether wages are set for two years or three. The Union agrees this issue is important, but argues that all the issues submitted are significant. Contract term and wages are addressed first because these issues have the greatest economic impact and require more detailed discussion of statutory factors.
As mentioned before, the City proposes a two-year agreement with retroactive raises of 2.5% each for 2004 and 2005. The Association proposes increases of 2.6% and 3.1% for the first two years of the Agreement. In the third year, the Union seeks an increase of 3.0% on July 1, 2006 and 2.3% on January 1, 2007.
The parties acknowledge that their dispute is not driven by the first two years of the new Agreement. Indeed, the City’s costing of the parties’ proposals indicates less than $1,000 difference in the first year and less than $7,000 difference in the second year. Exhibit E 6-1. The crux of their dispute is the third year.
Reasonable Financial Ability to Pay
The Employer’s argument for a two-year agreement emphasizes the statutory factor of ORS 243.746 (4) (b). That is, the reasonable financial ability of the City to meet the costs of the proposed contract giving due consideration and weight to the other services and priorities of the City.
The City does not claim an inability to pay. Rather, the Employer claims 2005-2006 Council priorities of reducing the use of reserves to balance the budget and restoring those reserves to an acceptable level support the selection of its LBO and not the Association’s. The City argues reserves are inadequate and have dropped "precipitously" from 2001-2005. The Council, emphasizes the Employer, has adopted an express goal of developing strategies for a balanced budget and minimizing the use of reserve funds. Exhibit E 16-17.
The Association counters that the City is not claiming an inability to pay its LBO and that the Employer has failed to provide sufficient evidence to prove its claims. The Union emphasizes the City has provided only summary charts regarding budgeted resources, revenues, and expenditures—no background supporting data.
To support its position, the City submitted the City Manager’s annual budget messages for 2003-2005 and data showing the continued rise of costs of retirement and insurance benefits. Exhibits E 14-16; Exhibit E-10. The Employer also stressed certain general fund information.
The City’s general fund is the funding source for the Police Department along with other major users: Administration, other Public Safety services, the Library, Planning & Development, and Parks & Recreation. Exhibit E 13-2. The Police Department is the highest user—between 30-35% (about $2,000,000). About 70% of the general fund goes to personal services. Exhibit E 12-1. The City provided two charts showing general fund activity over an eight-year period, 1997-2005. Exhibits E 18-2, 19-1. These charts summarize police expenditures along with beginning fund balances, net transfers in and out, and overall City revenues and expenditures.
The City points out there has been a substantial decline in beginning fund balances from 1997-2005 while police expenditures have increased. Together with the net transfers, this information indicates the City has maintained services but is using reserves to do so. For several years expenditures exceeded revenues. In 2005, however, City expenditures and revenues were essentially equal (roughly $5,600,000). From 2003-2005, the City took numerous actions to reduce general fund expenditures. In the Police Department particularly, it eliminated two police officer positions through attrition and combined the duties of the Records Supervisor and Administrative Secretary. Exhibit E 17-1. These actions have led to concerns about balancing possible increased service demands and the limited Police Department staff. Exhibit E 16-9. There is no doubt the Police Department is operating lean on personnel.
In reviewing the evidence, I find that in 2002, the City made similar financial arguments in interest arbitration. It did not claim inability to pay the Association’s proposed wage increase, but instead argued revenues were decreasing while expenditures were on the rise. Arbitrator Calhoun found the difference between the two proposals modest and referenced the priority of funding competitive wages for law enforcement personnel. He concluded there was no reason to believe unreasonable financial obligations would be created by awarding the Union’s proposal as opposed to the City’s proposal. The Arbitrator awarded the Association’s proposal.
In this case, the City focuses on the decline of its beginning fund balance and low level of reserves—but again does not claim inability to pay. There is no question of the legitimacy of the City’s goal to maintain a balanced budget and to build up its reserve. However, the City seeks to have this financial need elevated above other statutory factors without declaring inability to pay and without providing adequate evidence to support its claims.
The City submitted no underlying data for summary information set forth on its key charts. There is no reason to doubt the accuracy of the general information, but such information does not present sufficient detail from which to understand and evaluate the City’s entire economic picture
In terms of cost comparison for the third year, the parties disagree. The City submits the Union’s third year proposal constitutes about a 6.4% difference ($61,047) from its proposal of a two-year agreement. The Union argues 6.4% provides an inflated number because the parties don’t know what they would achieve in bargaining. The Association notes the City has made no mention of a wage freeze for the third year.
Assuming the worst–about 6.4% as argued by the City—the Employer has not demonstrated that an award of the Association’s proposal would prevent it from achieving its financial priorities. City Finance Director Lee Gadinas was candid and admitted that the City would have to work out its financial priorities another way if ordered to pay more.
In summary, the City’s evidence does not establish that the City lacks the reasonable financial ability to pay the cost of the Union’s LBO and it does not claim such. The Arbitrator is not persuaded by the limited evidence that the City’s financial needs/priorities should be given greater weight than other secondary factors or that its economic goals will be jeopardized by the award of the Association’s LBO over its own.
Overall Compensation and Comparability
The parties do not dispute the accuracy of each other’s numbers for overall compensation. They do, however, have a significant disagreement concerning methodology for deciding comparable communities. The City proposes what it refers to as its traditional labor market comparators; that is the cities of: Coos Bay, Florence, Astoria, Lincoln City, North Bend, Reedsport, Seaside, and Tillamook. Exhibit E-22.
The Association offers two sets of comparables, one that emphasizes population and uses geography to limit the range; the other set is identified solely by population. The Association’s first set consists of: Astoria, Lincoln City, North Bend, Cornelius, Gladstone, and St. Helens. Exhibit A-8. The Union’s second set of comparables is: Astoria, North Bend, Baker City, Cornelius, Fairview, and Ontario. Exhibit A-10.
The City’s 2005 population is 9,924.2 City comparables provide one city greater in population than Newport—Coos Bay with 15,700. The remaining seven City comparables are lower than Newport and range from Astoria at 9,908 to Reedsport with 4,230 (2004 figures).3
2. In 2004, Newport’s population was 9,760. Astoria was slightly higher with 9,980. In 2005, Newport took the lead with 9,924 over Astoria’s 9,908.
3. Population figures for Tillamook and Reedsport were provided by the City based on 2004 numbers. Population figures for 2005 were certified in December of 2005 and submitted by the Association. Tillamook and Reedsport were low enough in population that they were not included in the Union’s 2005 list of cities.
The Association’s approach presents an equal number of comparables above and below Newport within the range of 125% to 75% of Newport’s population. The Association’s first set limited comparables to cities in Western Oregon. The Union’s position is that geography is important in order to assess similar services in comparable communities. Still, the Association recognizes that some arbitrators have interpreted ORS 243.746(4)(e) as requiring a strict comparison based solely upon population. Accordingly, the Union also submitted an equal number of Oregon cities within 125% and 75% of Newport’s population.
Both parties provided numerous exhibits showing a comparison of overall compensation received by police officers in Newport and that of their selected comparators. The evidence was presented in summary form as well as in different "snapshots" over years of service and with/without certifications. Again, there was no dispute about the accuracy of numbers.
If the City’s LBO is awarded, the City’s numbers show Newport police officers to be a little below the overall compensation of comparators at entry level (-.78%) to Step 6 (-3.08%). From Step 7 and with advanced certifications, the City’s numbers show Newport with a slight advantage; for example, at Step 7 with no certifications .089% and at Step 10 with advanced certification 1.01%. The City argues that traditional labor market comparators show all its police officers to be within 5% of market if its LBO is awarded.
In contrast, the Association’s comparators show a greater disparity between Newport and its comparators. If the Union’s LBO is awarded, officers lag market comparators (first set) by an aggregate average of -7.7%. Using the Union’s second (population only) set, officers are behind an aggregate average of -4.8%.
I have considered all of the parties’ evidence regarding overall compensation and comparability, even if not expressly mentioned above. I find the Association’s methodology more consistent with the statutory criteria as well as more balanced.
The City’s methodology is not in sync with statutory mandate regarding population. Its approach places geography/labor market over and above population. The City’s comparison also is skewed with one city above Newport and seven below.
The City did not take such a narrow approach in the prior 2002 arbitration. In that proceeding, the City argued for its traditional labor market comparables, but also presented other comparability sets. One of these sets included a "3 up and 3 down" approach, not unlike that proposed by the Union here. Although Arbitrator Calhoun did not expressly adopt this latter approach, he found it persuasive; more so than the City’s "traditional" comparables that showed an "obvious geographical bias." Exhibit A-2.
Regardless of whether only population is considered, or a more flexible interpretation is given the comparability provision of the statute, the City’s approach runs counter to it. The Association’s approach does not. Using Association comparators from either set, the Union’s LBO allows a reasonable amount of catch-up to comparable cities in the third year.
Attraction and Retention of Personnel
The City argues it has no problem recruiting employees. It submitted evidence showing police officer applications it received in 2005. The Association did not dispute this evidence. Recruitment is not an issue. Retention is.
Similar to the 2002 interest arbitration, the evidence in this case shows significant employee turnover in the Association’s bargaining unit. In 2005, seven employees left the City’s employ: five police officers and two records clerks. Exhibit E 20-2; Exhibit A-7. In 2004, one police officer and one records clerk resigned. In 2003, one officer left the Department.
The City contends the evidence does not show that the turnover is the result of wages paid. The City acknowledges wages/economics may be a factor, but argues other factors were involved as well in employee departures. In support of this contention, the City provided information given by employees to the City during exit interviews concerning reasons for departure. Exhibit E 20-2,
The City made similar arguments before the Arbitrator in 2002. Arbitrator Calhoun acknowledged that the causes for departure were less than clear and could not be pinned solely to wages and benefits. Still, the Arbitrator found that although no concrete conclusions could be drawn, there was reason to believe the City’s wage and benefit structure were at least a factor in its inability to retain qualified personnel. The Arbitrator pointed out that significant turnover affects costs and efficiency.
Arbitrator Calhoun’s reasoning and conclusions are sound and equally applicable to the record in this proceeding. The evidence concerning reasons for employee departure is limited and second-hand. Still, it is reasonable to conclude that wages and benefits were not the only reason for employee departures. However, it also is reasonable to infer, as the City acknowledges, that wages and benefits play a part in employee retention. Turnover is significant and it concerns both the City and the Union. Accordingly, this factor lends some support for the Association’s LBO.
Cost of Living
ORS 243.746(4) (f) identifies the CPI-All Cities Index as a secondary factor appropriate for the arbitrator’s consideration. Both parties provided some evidence about cost of living.
The City submitted a breakdown of its salary increases for City employees from July 1996 through its proposed increases of July 2005. Exhibit E 24-2. From this historical evidence, the Employer argues it has exceeded the All Cities CPI increase for the Union’s bargaining unit.
The Association submitted evidence showing the CPI-All-Cities Average from 2000 through November 2005, as well as other cost of living indices. Exhibit A-9,
The CPI-All Cities indicates a 2004 annual increase of 2.6%. For the first half of 2005, the increase was 3.1%. For the last half of 2005, for the months July through November, the percentage change was: 3.3%, 3.8%, 5.2%, 4.7% and 3.5%.
I do not find the Employer’s historical evidence convincing support for its proposal. Available and relevant cost of living evidence indicates the Association’s LBO is more in line with cost of living for 2004 and 2005. The City’s proposal of 2.5% for those two years is below cost of living. Obviously, cost of living for the third year is unknown. To the extent numbers for 2004 and 2005 are any indication, the Association’s proposal for the third year encompasses about a 2-3% catch-up for its members.
Summary: Contract Term/Wages and Interest and Welfare of the Public
The City argues that its proposal is in the interest and welfare of the public because it meets the City’s budget resources and is fair and equitable to its employees. As explained above, I conclude the Association’s LBO regarding the term of the Agreement and wages is more consistent with relevant secondary factors. In particular, the Association’s LBO is supported by the factors of overall compensation/comparability, retention of personnel, and cost of living. In addition, the City does not claim inability to pay the Union’s LBO and has provided insufficient evidence to establish that the Association’s LBO will jeopardize its financial goals. Therefore, taking into consideration all the relevant factors, the Association’s LBO better serves the interest and welfare of the public.
The City further contends that its two-year proposal achieves labor peace, because it is fully retroactive and economic uncertainties can be better handled in bargaining during 2005-2006. To support this argument, the City emphasizes the policy articulated in ORS 243.656(1) which promotes the development of harmonious and cooperative relationships through use of collective bargaining. The Employer claims the parties will not "lap" themselves in bargaining and will already have collected comparator data as a result of this proceeding. Therefore, they can focus on the main issues of wages and benefits.
The Association argues that one party’s labor peace is not necessarily the other party’s labor peace. The Union urges that labor peace is not best achieved by these parties’ going back to the bargaining table—they have just been there and this is their second interest arbitration in a row. The Association asserts that its LBO is supported by evidence, and the statutory factors, and therefore should be awarded.
I am not convinced that the City’s argument about labor peace holds true. As demonstrated by the last two rounds of bargaining for successor agreements, the parties have been unable to resolve all of their issues through bargaining. Undeniably, bargaining requires a significant outlay of time, effort and resources for all involved. The circumstances indicate labor peace is more likely achieved by providing at least a short respite from bargaining where there is stability and predictability by the terms of an agreement. The parties’ last agreement was for a term of three years. The evidence convinces me that the interest and welfare of the public is best served by another agreement with that same term.
Issue 3: Premium Pay for Evidence Technician
The Association seeks a 2.5% pay increase for one member of its bargaining unit, Teresa Canfield, who is performing the job of Evidence Technician. The Association contends this increase is warranted because of increased responsibilities and duties of work Canfield performs as compared to the work of Records Clerk.
The City argues the proposed increase is not justified. The City’s opposition is not based on the economic effect of this proposal, as its impact is minimal in the context of the cost of the LBO packages. Exhibit E-6. The Employer also acknowledges that the duties of Evidence Technician are different from that of Records Clerk. The City’s position is that the jobs of Records Clerk and Evidence Technician are equally important and require a comparable level of skill and responsibility. According to the Employer, Canfield is properly classified and compensated pursuant to the combined classification of Records Clerk/Evidence Technician.
The issue presented does not concern the City’s decision to combine Records Clerk and Evidence Technician into one classification. The parties also do not dispute that Canfield is the only employee currently performing the work of Evidence Technician. Rather, their disagreement is focused solely on the question of whether a 2.5 % premium is justified for the work Canfield performs.
The City hired Canfield in 1990 as a receptionist. Exhibit E-7. From 1990 until 1998, Canfield apparently retained that permanent classification, although commencing in 1996, she began serving temporary assignments as Records Clerk. In June of 1997, Canfield was "reclassified" to "acting in capacity" as Records Clerk. Exhibit E 7-9.
In January of 1997, the City drafted a job classification entitled Records Clerk/Evidence Technician although no one filled that classification at the time. Exhibit E 7-3. Besides Police Officer, the parties’ 2001-2004 labor agreement contains references only to the classification of Records Clerk. During the most recent negotiations, the parties agreed to change references from
Records Clerk to Records Clerk/Evidence Technician.
On May 18, 1998, then Police Chief James Rivers announced the promotion of Canfield to Records Clerk/Evidence Technician. In so doing, Chief Rivers said:
This new classification will allow us a tremendous flexibility in the records section, and give us an opportunity to try something new.
Teresa’s responsibilities will include taking care of all the evidence and property as well as taking care of the equipment and vehicle repairs. She will remain in the Records Division, and will still be supervised by the records supervisor, except in the event that she is called to collect evidence on scene, then she will be responsible to the Detective Supervisor.
I am very excited about this new position, and excited about Teresa agreeing to try this position for a six (6) month period. I expect that everyone will cooperate as much as possible while she is in the process of learning this new position.
We will be advertising for a new "Temporary" receptionist shortly.
Exhibit E 7-13.
When she began this job, Canfield moved up a step on the wage scale for Records Clerk. The increase was about $50 per month.
Prior to Canfield’s promotion, Police Officer Steve Kittson performed evidence/property duties. In order to learn the work, Canfield "shadowed" Kittson for three months. The next three months she sought Kittson’s help and guidance as needed. Until about six months ago, Kittson was Canfield’s back up if she was absent from work. Currently, Canfield’s supervisor, Kathleen Palmer, is her back up. By all accounts, Canfield has done, and is doing, an excellent job.
Exhibit A-4(E).
As Evidence Technician, Canfield’s tasks generally include the following: receiving and maintaining evidence, sending and picking up evidence from labs, releasing evidence, purging evidence, sending letters to property owners, assisting the District Attorney as requested and in connection with evidence, and locating and delivering evidence to Grand Jury and Court. Canfield has been served with subpoenas from the Lincoln County District Attorney to appear in four criminal proceedings over the next three months (January-March 2006) in connection with her Evidence Technician duties. Exhibit A-11.
Canfield is responsible for ensuring a proper chain of custody with respect to evidence. Her work requires the handling of hazardous substances and equipment; for example, firearms, knives, blood, urine, and syringes. During her tenure she has created an evidence manual for the Police Department. Exhibit A4(C). She has provided training to officers in the proper packaging and handling of evidence, and has kept the officers and evidence manual updated.
Canfield also performs various duties in connection with the scheduling, maintaining, repairing, and purchasing of equipment for the Police Department; such as, scheduling patrol car maintenance, collecting, reviewing and selecting options for the purchasing of new patrol cars, ensuring new police cars are properly outfitted, researching and ordering new equipment, and performing repairs and replacements on small items of equipment. Exhibit A-4 (A); Exhibit E 7-3, 7-4.
Canfield has taken various courses from the DPSST in order to further train and assist her in the performance of her duties. From 1998 through 2004, her training records include courses for: managing law enforcement evidence/property, civil liability, acquisition and preservation of evidence, advanced techniques in property room management, forensics, and fingerprint-latent print evidence. Exhibit A-4 (B). Canfield also has received some weapons training on AR-15 and other handguns in order to safely handle them.
It is undisputed that the majority of Canfield’s time, about 60%, is spent in evidence-related activities. The rest of her time is devoted to fleet management and equipment functions described above as well as Records Clerk duties.
Records Clerks do not perform the above evidence/property/equipment tasks, nor have they received the training Canfield has received. Exhibit E 7-3, 74; Exhibit A-4 (D); Testimony of Records Clerk Pam Johnson and former Records Clerk Terry Heisturman. Records Clerks administer and maintain Police Department records on the computer system. They enter data and verify data integrity. They answer the telephone and respond to the public when persons come into the office, i.e. "counter contacts." The Records Clerks handle insurance and attorney requests. They track Oregon Uniform Crime Reporting (OUCR) statistics for the Department by reviewing, editing, and summarizing police reports and entering data into the computer.
Both parties submitted some evidence concerning who performs evidence work at other Oregon coastal police departments. Exhibit E-7-1, 7-2; Testimony of Detective Tom Simpson. Suffice it to say, in some departments police officers perform evidence work and in others non-sworn employees perform the job. This evidence is limited and insufficient to establish that circumstances in those departments are comparable to the situation here. My findings are based upon the record concerning Canfield’s particular work and training.
As explained below, I conclude the evidence demonstrates that the majority of the work Canfield performs is not only different from the Records Clerks, but also requires skills and responsibilities that justify the 2.5% premium. In so finding, I am not suggesting that Canfield’s work is more important than that of the Records Clerks, only that it justifies the proposed differential due to the particular training received, duties performed, and responsibilities involved.
Canfield’s work of ensuring that evidence is processed and maintained in a proper chain of custody is a heavy and serious responsibility. She is exposed to hazardous equipment and substances. She must respond to the District Attorney and on occasion is called to testify in criminal proceedings. The record ndicates that these evidence duties, which she performs most of the time, are beyond the administrative and clerical functions of Records Clerks.
The City characterizes the work of both jobs as primarily administrative and clerical in nature, even though the duties of the Evidence Technician are different. Police Chief Miranda offered some testimony to support this position.
Although some of Canfield’s duties may be characterized as clerical and/or administrative, many are not so easily categorized. Canfield assumed duties and responsibilities formerly performed by a police officer in the Department. She received six months of on-the-job training (three months of "shadowing" Kittson) and also attended numerous DPSST courses designed to supplement and increase the training she received on the job.
My conclusion that the 2.5% premium pay is justified is based solely on the record before me. The parties’ arguments and evidence suggest that in the future the City may decide to cross-train other employees and take steps to ensure adequate back up in Canfield’s absence. My findings and conclusions should not be interpreted as extending into the future and beyond the particulars of this case.
Issue 4: Change in Insurance Language
The parties have resolved all existing issues concerning Article 17Insurance for the successor agreement except for the City’s proposal to delete the words "or better than" from the phrase "substantially equally to or better than." This phrase modifies the level of insurance benefits to be provided by the Employer for the term of the Agreement. This language was the subject of a recent grievance arbitration between the parties. Exhibit A-5.
The Association filed a grievance alleging the City violated the insurance provision of the labor agreement by reducing medical and vision benefit levels and increasing premiums on August 1, 2004. The City denied the grievance and the Union advanced it to arbitration. On September 8, 2005, Arbitrator David Stiteler issued his decision and award concerning the dispute. Arbitrator Stiteler concluded the City had violated the labor agreement and ordered the parties to meet to bargain a mutually satisfactory remedy, if possible. The parties were able to resolve the remedy issue themselves, without returning to Arbitrator for assistance.
The Association claims the City’s LBO proposal is an attempt to degrade existing insurance protection. The Union argues the phrase "or better than" was a vital phrase in the Arbitrator’s decision to sustain its grievance, and if the City’s LBO is awarded the Employer will have license to reduce benefits. The Union also urges that as proponent of this change, the City has not met its burden of justifying the need for it.
The City contends the Association’s fears are misplaced. The Employer claims the focus in the grievance arbitration was the phrase "substantially equally to" and under its proposal this language will remain in the Agreement. According to the City, the Union still will have available to it current rights and remedies to challenge insurance changes by grievance or unfair labor practice.
In discussing the relevant phrase in his decision, Arbitrator Stiteler reasoned as follows:
The parties did not discuss the meaning of the phrase "substantially equal to or better than," either when it was first negotiated in 1996 or subsequently. Nor have they discussed how that phrase would be applied. Consequently they have no common understanding of how or on what basis such a determination is to be made, whether on an actuarial basis comparing plans overall or on a benefit by benefit analysis with plans.
However, that they intended "substantially equal to" to mean something other than "equal" is clear. Otherwise, there was no reason to have included "substantially" in defining the City’s promise. Since the parties did not define the word, it is appropriate to consider the dictionary definition in order to give it its ordinary meaning. [Footnote omitted.] The first definition of "substantially" is "essentially." [Footnote omitted.] So the City must provide benefits that are, in essence, equal to those being replaced. That does not mean the benefits must be identical, only that they must remain the same on the whole.
Equally important is the tag end of the phrase: "or better than," which also must be given meaning. The use of those words indicates that the parties intended that the City be allowed to improve, but not reduce, benefits. Said differently, if the parties intended that the City be able to provide insurance with reduced benefits, there would have been no need to further qualify "substantially equal to" with "or better than." (Emphasis added.)
Thus, the relevant phrase means the parties intended to allow for changes in insurance benefits so long as the altered benefits are at least as good as those replaced. * * *
The above reasoning of the Arbitrator makes it plain that the words "or better than" were "equally important" to his interpretation of the entire phrase "substantially equal to or better than." Accordingly, their deletion suggests a weakening of contract protection. It is not logical that the City intends no change to the benefit protection provided by this proposed deletion—why propose it otherwise? Rather, the above history indicates the intent is to achieve more flexibility for possible changes to insurance benefits.
The Arbitrator concludes, as proponent of this change, the City has not provided convincing evidence and argument to support it.
For all the foregoing reasons, the Arbitrator concludes the evidence and arguments establish that the Association’s LBO is more consistent with relevant statutory factors of ORS 243.746 (4). Accordingly, the Arbitrator selects the Union’s LBO dated November 16, 2005, which includes all tentative agreements of the parties in addition to the proposals that have been awarded by the
Arbitrator in this proceeding. Exhibit E-4; Exhibit A-3(A).
Having carefully considered all evidence, authority, and argument submitted by the parties concerning this matter, pursuant to ORS 243.746 (4) the Arbitrator selects the Association’s Last
Best Offer dated November 16, 2005.
Respectfully submitted,
Kathryn T. Whalen
Date: January 27, 2006
For the Union: Jaime B. Goldberg, Garrettson Goldberg Fenrich & Makler, P.C.
For the Employer: Candace Ludtke, Local Government Personnel Institute (LGPI)