In Arbitration Between the Oregon State Police
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IN ARBITRATION BETWEEN THE OREGON STATE POLICE OFFICERS ASSOCIATION, Interest Arbitration and THE STATE OF OREGON Appearances: Daryl s. Garrettson, Esq., John Hoag, Esq., Hoag, Garrettson, Goldberg and Fenrich, for OSPOA Gary M. Cordy, Assistant Attorney General, and Eva Corbin, Labor Relations Manager, for the State of Oregon WILLIAM P. BETHKE, Arbitrator: This matter was heard in Salem, Oregon, on April 18 and 19, 1996. Voluminous evidence was submitted and lengthy post hearing briefs were mailed, following brief extensions, on about May 21, 1996. The State, with permission of the Association, submitted one brief correction and, on June 21, one brief supplemental submission. Background to the Case This case requires the Arbitrator to select either the "last, best" offer of the State of Oregon, Department of Police, or of the Oregon State Police Officers Association, thereby completing a collective bargaining agreement. The offers were submitted under relatively new and little tested amendments to the Oregon Public Employment Collective Bargaining Act. This Arbitrator has previously, and recently, discussed the new statutory criteria for interest arbitration and the relevant legislative history, in some detail. 1 There is no need to repeat that discussion in this case. Association of State Corrections Employees and State of Oregon (February 5, 1996). The flagship dispute between the parties concerns wages. The State proposes a two year wage freeze. The Association proposes two three percent raises for all employees and two additional two percent raises for Telecommunicators I and II. The Association has proposed increasing the insurance contribution under the contract to cover the full costs of the Blue Cross Plan 3 Health and Dental and core life insurance. The State proposes a freeze on contributions that will require any increase in these costs to come from employee salary. Both the State and the Association have proposals related to uniforms. The State would not restrict the amount of the current allowance, but would require prior approval of purchases and insist that purchases be appropriate for the employee's work. The Association would expand the allowance for certain footwear. The State has proposed to change the status quo by elimination of the "outpost itinerary" provision of the contract. The current provision provides for flexible scheduling and premium pay of troopers assigned to "outposts." The Association proposes to maintain the current language and notes that the State does not propose to alter the residency requirement applicable to troopers assigned to outposts. The Association proposes reimbursement for parking for employees at the Portland Crime Lab. It also proposes a change in methodology in premium pay for pilots. The Association proposes to amend language on compensatory time to confirm to its view of the requirements of the Fair Labor Standards Act and the situation 2 before the last interest arbitration. On each point, the State resists the proposed change. The parties submitted differing proposals for responding to Ballot Measure 8. Since that Measure has been declared unconstitutional, differences in those proposals appear moot. Discussion and Conclusion The Arbitrator will first consider the parties' general arguments or disagreements about issues of interpretation or application of the law, then summarize the proposals, then consider the merits of the proposals in light of the statutory criteria, and, finally, attempt to balance all of the resulting conclusions. I. DISPUTES OVER THE MEANING OF THE STATUTORY CRITERIA A. The Interest and Welfare of the Public The statute now requires that if the "interest and welfare of the public" dictates acceptance of one offer, the Arbitrator must approve that offer without further inquiry. Both parties here argue that the "interest and welfare of the public," for various reasons, dictates that the Arbitrator rule in its favor. The State is certainly correct in arguing that one cannot merely define this highest priority by reference to matters the statute makes secondary. It follows that to the extent either the Association or the State make such arguments as directly related to "interest and welfare of the public," they are better considered under the more specific statutory criteria. Thus, for example, the Association argues that retention of high quality personnel is in the "interest and welfare of the public." This is certainly true. 3 It is also fully accounted for under the secondary retention criteria in the statute. The state makes a similar argument regarding the possibility of a reduction in force. This is a serious matter. It is also a concern for ability to pay and retention of employees; once again, secondary statutory criteria. The State is also correct in arguing that the "interest and welfare of the public" must have some meaning and application beyond being a general guide to use of the secondary criteria. Otherwise it will be a hortatory primary criterium, with no real operative effective. 2 The Arbitrator also accepts the State's argument that "the interest and welfare of the public" was made the first criterium for decision because it is impossible to "argue that the public interest should not be the first priority." After SB 750 (LERC Monograph No. 14 1996) 71. However, it is impossible to make this argument, in part, because the term "interest and welfare of the public" is inherently debateable; everyone can agree on giving this term priority in part because the term is broad and malleable -- that is, everyone can disagree about precisely what it means. The Arbitrator continues to believe that this term of the statute serves two primary purposes. First, it reminds and compels arbitrators to respect binding decisions already taken by public bodies within their distinctive powers. To the extent a proposal 2 Of course, declarations of primarily symbolic value, with little or no operative effect, are not unknown in the annals of legislation. See, e.g., Pennhurst State School v. Halderman, 451 U.S. 1 (1980) (Congressionally declared "Bill of Rights" for certain persons merely "encouraged" certain state policies). 4 or argument rests on disputing what, for example, the legislature has chosen to expend versus what it has chosen to rebate to taxpayers, or similar actions outside the jurisdiction of arbitration, this is simply not a matter for arbitrators. Proposals or arguments premised on disputing such actions are outside the bounds of "the interest and welfare of the public." No such issue is presented by the proposals here. Second, this provision allows an arbitrator to firmly disapprove of a proposal that is clearly outside the bounds of reasonableness, given identifiable public interests. Both parties, naturally, argue that the other has exceeded these generous bounds. Those arguments will be reviewed below. B. Comparability The parties are at odds over almost every issue related to comparability. Comparability, for State employees, involves, under the new statute, two potential sets of comparisons. First, there can be comparison with employees of Oregon local governments who are "performing similar services ••. in comparable communities." O.R.S. § 243.746(4) (e). Second, there can be comparison with "other states." O.R.S. § 243.746(4)(e)(C). The issues here include what comparisons are most important; which local governments and states should be used for comparison; how comparisons should be conducted; and what employee classifications or ranks provide a benchmark for comparison. 1. Importance of Comparisons Both parties have argued that in-state comparisons are 5 secondary in this case. The Association has argued that it is "virtually impossible" to compare the complex of operations of the Oregon State Police with "City or County police employees." However, the Association argues that city and county pay remains relevant, especially in evaluating the statutory criteria of retention of employees. That is, the State should not become a training ground for local police departments. Similarly, the State has argued that the scope of state police department activities in other states is more comparable to the work of the Oregon State Police than any local unit. Thus, the parties basically agree (and the Arbitrator happily accepts) that local comparisons are of secondary importance for this unit of State employees. 3 2. Comparable States The State pleads here, as it is apparently doing in every case, that California should be eliminated from any comparison. For the reasons that follow, the Arbitrator disagrees. First, it is clear that California has been repeatedly used by the State, various unions, and many arbitrators as a basis for comparison. While such past practices and awards are not written in stone, there must be some persuasive reason to depart from such a uniform course. Second, the State argues that one such reason is population. 3 The Arbitrator appreciates that the Association had second thoughts about giving such prominence to intra-state comparisons. However, the reasoning of its original argument appears sound. Further, the Arbitrator's has serious doubts that the statute actually contemplated any particular method of in-state comparison. For both reasons, it is appropriate to adopt the original, clearly agreed, position of the parties. 6 As it sees it, population has become the touchstone of comparison for most public employees and by parity of reasoning should be the touchstone of comparison here. This plausible argument is contrary to the statute. The statute provides that in general, comparison is limited to jurisdictions of comparable population in Oregon. O.R.S. § 243.746(4) (e). Then, " [ n] otwi thstanding" this general rule, for larger population cities and counties comparison to similarly sized cities or counties outside Oregon is authorized. O.R.S. § 243.746(4)(e)(A) & (B). Finally -- and once again "[n]otwithstanding" the general rule -- for "the State of Oregon, 'comparable' includes comparison to other states." O.R.S. § 243.746(4) (e) (C). In marked contrast to the preceding sections of the statute, no mention of population occurs in subsection (C).