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An eight-year veteran of the Anacortes Police Department described by management as a "good cop," was fired for drunk driving off-duty. The Anacortes Police Services Guild challenged the termination in an arbitration hearing before Arbitrator Leslie Sorensen-Jolink who upheld the employer's action. The officer, arrested by a Skagit County Sheriff's deputy, pleaded not guilty to the DUI charge, and later granted a deferred prosecution on that charge.

The officer's case before the arbitrator centered around his assertions that the police department fostered a climate of drinking among employees which led him to believe that the employer would not treat alcohol-related misconduct seriously. For example, the officer asserted, and co-workers so testified, that from his earliest days in the police department, he and other officers attended off-duty gatherings where they drank alcohol and then drove home. He also testified that when he worked with the multi-agency Skagit County Task Force, he and other members of the force would sometimes drink on and off-duty in area taverns attempting to "develop leads."

The arbitrator agreed that there may have been a time during the administration of a former police chief when a drinking climate was tolerated. Nevertheless, the officer should have known that driving while intoxicated was conduct the department would not condone. Further, the evidence showed that more recent administrators made clear that they had a low tolerance for misconduct related to off-duty drinking. In addition, the officer had been disciplined earlier for an event that occurred in a local lounge, encouraged to seek treatment, and warned that further alcohol-related incidents could result in discipline or discharge.

As to the nexus between the employee's off-duty misconduct and the City of Anacortes' legitimate business expectations, Arbitrator Sorensen-Jolink wrote that the:

employee's criminal conduct violated and eroded the public trust and weakened the department's effectiveness by compromising its reputation in the community, causing the public to feel that it was not well served by its police department.

City of Anacortes and Anacortes Police Services Guild (Arb. L. Sorensen-Jolink, 1999)

LABOR AGREEMENT TRUMPS CIVIL SERVICE AUTHORITY
IN SPOKANE CONFLICT

Prior to the events giving rise to this dispute, the Spokane Civil Service Commission had sole responsibility for promoting uniformed patrol officers to sergeant. The Commission used a multiple-choice examination to determine who should be promoted and made each promotion based on the "rule of one." Under this rule, the highest ranked candidate on the exam was the person certified to the police department for promotion.

The dispute arose when the City of Spokane and the Spokane Police Guild entered into a collective bargaining agreement which contained a new procedure for promotions. The employer and the union agreed that an assessment center, a process to further evaluate candidates, should be used to supplement the Civil Service Commission's testing procedure. The assessment center would evaluate the leadership and supervisory abilities of the top 12 scorers on the civil service exam and determine who was the best qualified patrol officer for promotion.

The Commission decided not to recognize the change and it advised the employer and the union that it would not certify the pay for any individual who was promoted to sergeant under the new procedure. The city and the union took the dispute to court and prevailed.

Division III of the Court of Appeals noted that although civil service systems were designed to protect public employees from arbitrary and capricious employer action, in "the mid-1960s, public employees began to view civil service systems as an extension of management and demanded collective bargaining on issues traditionally left to civil service commissions." Thus, in 1967, RCW 41.56, the Public Employment Collective Bargaining Act was enacted.

The court found that promotion procedures are normally a mandatory subject of bargaining, making the subject one which the employer had to negotiate with the union. By statute, an exception to the obligation to negotiate occurs if an employer "delegates such matters to a civil service commission that is similar in scope, structure, and authority to the state personnel board." On appeal, the Spokane Civil Service Commission claimed to meet those requirements.

Scope, Structure and Authority Examined

According to the appeals court, the "scope" of a civil service commission or personnel board refers to that body's jurisdiction or power to take various actions. The state personnel board has jurisdiction over a wide variety of state employees, as does the Spokane commission. Thus, it found the latter agency met the "scope" requirement.

However, the Spokane Civil Service Commission failed on the "structure" requirement. The court explained that the "structure" of a civil service commission "relates to the organization of the body, including the manner in which the members are appointed and removed." Persons appointed to the state's personnel board must have "demonstrated an interest and belief in the merit principle," must not be a state employee, and must steer clear from partisan politics. Spokane commission members, by comparison, do not have to commit to the merit principle, and nothing prevents them from engaging in partisan politics.

The Spokane commission also failed the "authority" test. The "authority" of a civil service commission or personnel board relates to the "breadth of subject matters covered or regulated by that body," the appellate court stated. Unlike the state personnel board, the Spokane commission has no authority over wages or wage related matters, call-back or standby pay, compensation, workers' compensation, compensatory time off, training or performance evaluations.

Terms of Labor Agreement Control

The court found a statutory conflict existed because without the Civil Service Commission's cooperation, the employer could not abide by the terms of the collective bargaining agreement. Accordingly, under RCW 41.56.905, the terms of the negotiated agreement control:

The purpose of the Act is not served if a city complies with its obligation to collectively bargain, only to have the civil service commission refuse to abide by the collective bargaining agreement. The intent of the Act is that the Agreement supersede the Commission's rules.

City of Spokane v. Spokane Civil Service Commission, No. 17956-7-III, (Wn. App., December 21, 1999)

PORT ANGELES POLICE RECEIVE SIX PERCENT INCREASE

In a dispute between the City of Port Angeles and Teamsters Local 589, representing a unit of sworn police offers and sergeants, the sole issue before Interest Arbitrator Jane R. Wilkinson was wages. The employer had proposed a wage freeze for 1998, a six percent raise for 1999, and a CPI-based increase for the contract's final year. The union had proposed a retroactive 12% raise for 1998, followed by two successive CPI-based increases.

Population, Assessed Valuation and Proximity for Comparators

Regarding the selection of comparators, the arbitrator observed that:

Although not all cases lend themselves to a simple population, proximity and valuation screen, utilizing those screens in this proceeding produces no significant distortions. Therefore, the Arbitrator will utilize the generally accepted approach in this case.

In her final list of comparators, the arbitrator first selected five jurisdictions which both parties had included in their list of comparators: Aberdeen, Marysville, Mount Vernon, Mountlake Terrace and Mukilteo. She found that Oak Harbor was comparable demographically and noted the parties' history of using Oak Harbor, but found the employer's proposed use of Centralia more problematic. Although Centralia passed the basic population and assessed valuation screens, it had a relatively smaller population and was a greater distance from Port Angeles. She decided to include Centralia because no 1999 data was available for Aberdeen and Oak Harbor because those jurisdictions had not yet settled their contracts.

The arbitrator found it inappropriate to add comparators from the central Puget Sound metropolitan area, citing the disparity in economic conditions between that area and Clallam County. She eschewed the use of three eastern Washington comparators as being unnecessary to devising a satisfactory list. She also found it unnecessary to perform a total revenue analysis, opining that this secondary indicator is appropriate only when the primary indicators of population, assessed valuation and location are unsatisfactory for the jurisdiction in question.

Based on an analysis of the comparators, the arbitrator found that Port Angeles ranked fourth in population and assessed valuation and third in assessed valuation per capita.

Benchmark: Top Step Base Plus Longevity

The arbitrator agreed with the union that the traditional benchmark classification is top step base wage. Nevertheless, a longevity consideration is appropriate because it "acts as an additional step in wages and because comparisons can be easily made." She noted that 21 of the 27 bargaining unit members had been with the employer more than 10 years.

Although the employer offered an educational incentive, its sporadic distribution made its use as a benchmark inappropriate. Moreover, making a suitable comparison with other jurisdictions was difficult.

Significant Pay Lag Found, but Fiscal Climate Problematic

After performing a pay analysis of Port Angeles' comparators, the arbitrator found its pay to lag significantly, noting that a "6% increase, even if offered for 1998, would not bring the majority of the bargaining unit up to the average of the comparators."

On the other hand, the City's financial health was an important factor militating against a large pay increase:

Regarding budgeting and surpluses, there is a fine line between excess caution and fiscal responsibility. While the City may have and continue to maintain enough of a cushion to pay a sizeable wage increase, such an increase, nevertheless, would impose a strain on its diminishing resources, in this Arbitrator's opinion.

The arbitrator noted that assessed valuations were stagnant and the closure of a paper mill resulted in a significant revenue loss to the city. The arbitrator noted the evidence of lower labor market wages, higher unemployment, flat per capita and median household income in Port Angeles. Cost of living considerations likewise favored a conservative approach to wages, the arbitrator opined.

On the subject of internal equity, responding to the union's plea for parity with the firefighters, the arbitrator found she should not delve in questions of "comparable worth." She also noted the employer's contention that when one considers the differing pay structures between its police and firefighters, the difference in wages was not significant. She found the fact that other municipal employees accepted a wage freeze in 1998 to be a significant but not necessarily controlling factor.

Considerations pertaining to turnover favored the employer because of evidence that it has had no difficulty attracting qualified candidates based on existing pay and no difficulty in retaining them once hired.

Six Percent Plus CPI Appropriate

The arbitrator found the most important consideration favoring the union was that the employer's police wages trailed those of its comparators relative to its standing in assessed valuation and population. If the employer's rank were at the bottom, it might be reasonable to consider a pay rate that also would occupy that position. However, the employer ranked fourth in assessed valuation overall and third in per capita assessed valuation. "By comparison, the city ranks dead last for 1998 police officer wages at the entry, five, ten and fifteen-year marks," the arbitrator wrote. A six percent increase "would place it at a more respectable fifth spot at the ten and fifteen-year marks." A larger increase could not be justified in the uncertain economic climate. The arbitrator awarded the six percent increase to be split between the first and second year of the new contract and awarded a cost of living increase for the second and third contract years.

City of Port Angeles and Teamsters Local 589, AAA 75 390 00215 98 (Arb. J. Wilkinson, November 15, 1999)

DISABLED CORRECTIONS OFFICER DENIED REQUEST FOR ACCOMMODATION

A corrections officer working at the Washington Corrections Center for Women in Gig Harbor claimed that the employer failed to reasonably accommodate her disability. Division II of the Court of Appeals disagreed, finding that she could not perform the essential functions of her job due to back and knee injuries.

The officer was assigned to work the control booth at the center after she suffered her injuries. The control booth is a locked room with reinforced windows. Generally, the control booth officer rarely leaves the building and has no contact with inmates. But in an emergency, such as a riot or a fire, the control booth officer may be called upon to help restrain inmates.

The officer gave the employer a letter from her physician excusing her from defense tactics training, part of a routine training session for corrections officers. The employer asked the physician to comment on the officer's ability to perform the essential functions of her job, and the physician responded that the officer was not fit to "wrestle with inmates."

Job Function Essential Even Though Rarely Performed

The officer argued that she had never been pulled out of the control booth to restrain inmates, and therefore restraining inmates should not be considered an essential function of a control booth officer. The appeals court disagreed because (1.) she was hired as a general correctional officer; (2.) the job description states that typical work includes the use of physical force; (3.) the supervisor viewed the ability to restrain inmates as an essential function of the assignment; (4.) the collective bargaining agreement contemplates a variety of situations in which she could be called out of the control booth; and (5) a witness with extensive experience working in control booths testified that he had been called out on more than one occasion to restrain inmates.

The court explained that the officer's request for accommodation in the form of reinstatement to control booth officer would create an undue hardship for employer by compromising safety in emergency situations and reducing its staffing flexibility. Citing case law, the court stated that an employer does not have to grant the precise accommodation the employee requests, but "was limited to locating an opening for which the officer was qualified."

Dedman v. Personnel Appeals Board, No. 24163-3-II, (Wn. App., December 17, 1999)

UNION CONFIDENTIALITY RIGHTS UPHELD

The Public Employment Relations Commission overturned an examiner decision (see the Fall 1999 REVIEW) dismissing a complaint that the City of Tacoma police department interfered with union activities when it questioned the president of the Tacoma Police Union Local 6 about the internal affairs of a deadly force review board.

The Tacoma police department established the "Use of Deadly Force" review board in 1981 to investigate a death resulting from police activity. Detective Steve Holmes was the union appointee for the board reviewing the death of Officer William Lowry. After a couple of board meetings, union president Robert Blystone received calls from bargaining unit members complaining that Holmes was asking too many questions during the review board meetings and was acting more like an inquisitor than a union advocate. Holmes complained to the police chief that he felt Blystone had conspired with the deputy police chief in trying to coerce him to vote a certain way.

The police department put the Lowry review board on hold while it investigated the allegations. Upon being questioned, Blystone stated that he was trying to get across to Holmes that his role was simply one of advocacy. However, Blystone refused to discuss the phone calls from union members, which he said were privileged communications. The police department's interviewer threatened Blystone with dismissal, and the union filed unfair labor practice charges.

Collective Bargaining Law Prevails Over City Policy

The Commission first noted that Blystone "asserted a privilege that was only operative if his contacts came from within the bargaining unit." It found that the employer committed an interference violation because Blystone's statements are "sufficient to conclude that the employer knew or should have known that Blystone was protecting the confidences of bargaining unit members." The Commission wrote that the employer failed to show the relevancy of its inquiry into the nature of Blystone's contacts. Citing several PERC decisions, the Commission concluded that the examiner erred by placing city policy above collective bargaining law.

City of Tacoma, PECB 6793-A (2000)