By Jim Cline and Troy Thornton
This is the second of two articles on recent Interest Arbitration decisions as part of our Annual Wage survey. A summary of all recent arbitrations since 2008 is available on the Premium website. This article covers a September 2020 decision by Arbitrator Jeffrey Jacobs involving the Washington State Fish & Wildlife Officers Guild (FWOG). While there were a few decisions last fall involving State employee bargaining units that are unique to those groups, this decision and the previously discussed Clark County decision are the only arbitration decisions involving public safety employee wage arbitration since the pandemic. (There is a November 2020 decision involving the Snohomish County corrections officers that only concerns their health insurance coverage.)
Background. The history of this arbitration is a bit unusual. FWOG had successfully lobbied to have the state employee collective bargaining law amended to grant them the same bargaining rights as the State Troopers. The legislation was adopted in April and was implemented in June just as they were entering what would have been their state “coalition” contract negotiations under the State Master labor agreement. As this was the initial agreement for just the FWOG, there were quite a few issues remaining to be decided at interest arbitration. This article will focus on some of the more prominent aspects of the decision, including the ability to pay issue which has been present in most CBA discussions since the onset of the COVID-19 pandemic.
The other unusual aspect of this arbitration is that it occurs under the highly restrictive procedures of the state law. Arbitration cannot commence earlier than August, but the arbitrator must decide the entire matter by September 30. Given the acceleration involved with FWOG’s newly acquired arbitration rights, the hearing was started in the second week of September and concluded only two weeks before the hearing was done.
The Guild was represented by Cline and Associates, including Jim Cline, Kate Kremer and Troy Thornton. Guild leaders Dave Jones and Isabel Van Vladricken assisted in the hearing.
Comparables. The parties, in a slight deviation from most interest arbitration hearings, agreed to adopt a single comparable for this hearing: the Washington State Patrol. The rationale behind this decision was that WSP is the only other general authority law enforcement agency that handles matters across the entire state. This stipulation allowed the parties to streamline their preparation in recognition of the timeline constraints that existed.
Ability to Pay and Internal Equity. The State heavily relied upon its June economic forecast, which stated that the State might face an $8.4 billion deficit over the biennium covering the agreement at issue. The State insisted that there was a need to take immediate action to resolve that deficit, which included an initial proposal of a wage decrease, and ultimately led to the State’s final proposal which included a wage freeze. The State had used the dire projection to persuade all the bargaining units in the state to accept a wage freeze. Given their large wage gap which the newly acquired arbitration rights were designed to address, the Guild had refused to accept the wage freeze.
The Guild contested the State’s assertion that the projected budget shortfall was as dire as claimed. The Guild pointed to the State’s own August economic forecast, which showed that the June forecast relied upon by the state was outdated and that State revenue collections had exceeded those forecasted in the June report by roughly 20%.
Wages. The Guild proposed increases of 7.2% in both 2021 and 2022. This amount was proposed based on the vast wage disparity between the Guild and its only adopted comparable, the Washington State Patrol.
The State proposed no increase in 2021, and a wage reopener in 2022. The State also proposed a freeze in all pay step progression, a proposal that all the other state bargaining units, other than the State Troopers who also have arbitration rights, had accepted.
Ultimately, Arbitrator Jacobs awarded the State’s proposed lack of increase in 2021, and a wage reopener for 2022. He rejected their pay step freeze proposal. In his decision, Jacobs gave credence to the ability to pay arguments raised by the State. Despite Jacobs’ acknowledgment that the State’s financial situation was not as dire as claimed, he heavily relied upon the fact that the parties’ sole adopted comparable — the Washington State Patrol — did not receive a wage increase, and only received a 2022 wage reopener.
This decision was a deviation away from the standard analysis that arbitrators perform in interest arbitration hearings. While the statutory factors typically lead arbitrators to close a wage gap if one exists, Jacobs opted to instead analyze the exact increase (or lack thereof) given to the parties’ adopted comparable.
Education Pay. The Guild proposed a two percent incentive pay for those officers holding an Associate Degree, and a four percent increase for those with a bachelor’s degree. Until recently, all newly hired Fish and Wildlife officers were required to obtain higher education in some form, needing either a four-year degree or a two-year degree with two additional years of relevant experience. The Guild cited the importance of that requirement and comparability (as well as statewide industry standards) to justify its proposal
The State, consistent with their decision not to propose any wage increases, did not propose any increase for those officers holding degrees.
Arbitrator Jacobs awarded the Guild’s proposal. In doing so, he was convinced by the fact that the Washington State patrol has an education incentive in place. He also acknowledged that additional education tends to result in more competent and qualified officers. Given the heavy concentration of FWOG members with college degrees, this premium pick-up did take some of the sting out of the one-year wage freeze award.
Holiday Pay. Prior to the interest arbitration hearing, Fish and Wildlife officers were required to work all three days of a holiday weekend in order to receive one day of holiday overtime pay. The Guild proposed a change to this, which would allow for an officer working just one day over a holiday weekend to be eligible to receive holiday overtime pay. The proposal was grounded in the belief that the weekends preceding a holiday are typically just as busy, or busier than the holidays themselves, and an officer working any day over that weekend would be prevented from otherwise enjoying the holiday by doing things such as traveling.
Again, because the State was seeking no changes that would have any financial impact, they opted to propose no change to the current practice.
Arbitrator Jacobs found that the Guild’s proposal was not overreaching and was viewed as a compromise. As a result, he adopted the Guild’s proposal.
Other issues. As an initial contract transitioning away from the state “Master” CBA, Jacobs addressed a number of other language issues that the parties were unable to agree upon. Primarily he continued current language, although he did grant FWOG its proposal to improve their workers comp supplement pay, to align it with the statutory LEOFF II mandate.
This decision was a deviation away from the standard analysis that arbitrators perform in interest arbitration hearings. While the statutory factors typically lead arbitrators to close a wage gap if one exists, Jacobs opted to instead analyze the exact increase (or lack thereof) given to the parties’ adopted comparable. While “settlement trends” are an important factor, particularly in an economic downturn, it is unusual to provide that factor the controlling weight that this arbitrator did.
The State had a compelling internal equity argument because the 100 plus FWOG members were the only State employees resisting the wage freeze. On the other hand, FWOG had a compelling wage gap argument. It was the competing factors of a large wage gap versus a distressed economic situation that Arbitrator Jacobs had to resolve.
Arbitrator Jacobs ultimately provided heavy consideration to the State’s June 2020 Economic Forecast and failed to engage in an in-depth discussion of the August update that had undermined the June Forecast. The State argued that the bimonthly updates were not as credible as the semi-annual reports. No doubt the irregularities around the State’s forecast (scheduled to coincide with their biennial contract negotiations) will be a significant point of contention in the parties’ 2021 contract reopener negotiations. The parties already have scheduled an arbitration hearing for August 2021 in the event the wage reopener is unsuccessful.
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