Useful information from the Oklahoma Municipal League's website

While doing a little research I ran across the Oklahoma Municipal League's website. I thought the membership would benefit from some of the information I found there. All quoted material in this post can be located at www.oml.org.

The Oklahoma Municipal League (OML) "consists of cities and towns working together for their [emphasis ours - LPU] mutual benefit. The OML acts as a central clearinghouse for information and services for its member municipalities. It is a non-profit corporation controlled by officials of member cities and towns."

"A 17-member Board of Directors consisting of elected and appointed city and town officials meets regularly to set OML’s priorities and to direct the staff. The Board members are elected at the annual conference. Legislative direction is determined by the delegates attending the conference through adoption of specific issues and a statement of policy."

The organization is clearly concerned more with the interests of the Cities and Towns and not the local Unions and the employees that make up those organizations. While searching for grievance and arbitration information I located a page that discusses the Oklahoma Fire and Police Arbitration Act (FPAA) and had a lot of good, basic union-related material on it. Here it is for your educational purposes:


(Remember as you read this that this was written from the standpoint of protecting the rights of the City and not the unions.)

"Summary of Fire and Police Arbitration Act

We have recently received several inquiries on the requirements of the Fire and Police Arbitration Act (FPAA).  It appears the Fraternal Order of Police (FOP) is attempting to organize labor unions for police officers in several new communities.  Should you be contacted by the FOP, we have excellent materials we can forward you to assist in your response.

Like many municipal statutes, the FPAA has its own “language” and sometimes complex legal concepts.  Although the bargaining statute passed in the early 1970’s, the legal principles are still being established for bargaining, contract management and employer/employee labor relations.  While this state of flux might make this an exciting area of municipal law, it is also sometimes hard to identify exactly what can and can’t be done on a day-to-day basis.  To assist you, here is an overview.

FPAA Basics. The Fire and Police Arbitration Act (FPAA) governs the collective bargaining, unit membership, union certification/de-certification, arbitration and unfair labor practice requirements between municipalities and police and fire labor unions.  The FPAA falls under the oversight of the Public Employees Relations Board (PERB), a state agency located in Oklahoma City.  The FPAA is found at 11 O.S. Section 51-101 and following.

Bargaining.  The duty to bargain is broadly worded to include “wages, hours and other terms and conditions of employment.”    The Oklahoma Supreme Court has held that the city/town is held to the highest standard of good faith.  The police and fire labor union members are prohibited from striking under Oklahoma law.

Unit Membership.  The Act mandates that all the “permanent paid members” of any fire or police department are eligible to be members of the bargaining unit.  Unlike other state’s, Oklahoma does not exempt out supervisors.  The only exemption from union membership is the chief and one administrative assistant.

Two major areas of court cases and PERB complaints over bargaining unit membership are:  (1) who is a police officer under the FPAA definition; and (2) the right of a probationary police officer or firefighter to full contract protections including the right to challenge management decisions via grievance arbitration.

Unfair Labor Practice.  A major area of litigation under the FPAA is over the meaning of the Act’s prohibition of unfair labor practices.  These are heard at PERB and appealed to District Court.  Many of the cases are in the area of failure to bargain in good faith arising from charges of unilateral action as well as a failure to participate in arbitration.  These disputes oftentimes turn on whether the collective bargaining agreement contains a sufficiently broad management rights clause to authorize the management action taken. 

Certification of the Union.  The FPAA has detailed requirements on certification/decertification of a labor union.  PERB is given jurisdiction over these actions.  Voting is done by secret ballot and the results are certified by PERB.

PERB.  PERB is composed of a three member board with staggered five year terms appointed by the Governor.  The Attorney General’s office provides legal representation to the Board.  Its areas of jurisdiction are in union formation and unfair labor practice charges.  Appeal from PERB decisions are taken to district court and are governed by the Administrative Procedures Act.  PERB is a full party to the appeal.

Arbitration.  There are two types of arbitration in the FPAA.  There is interest arbitration (occurring when the parties have failed to reach agreement via bargaining) and grievance arbitration (which resolves disputes over the meaning of the agreement once it is in place).  Arbitrators are usually selected via the Federal Mediation and Concilation Service (FMCS).  The cost of arbitration is shared between the parties and formal rules of evidence do not control.

Grievance arbitration is binding on all parties except in narrow circumstances that are still evolving via litigation.  Interest arbitration is not binding on the municipal employer.  The city or town can reject the interest award and present the union and city/town last best offers to the voters in a special election.  If the parties cannot reach agreement on the ballot language then the matter is referred back to the interest arbitrator who will determine the ballot language.  The decision of the voters then establishes the contract.

Past Practice/Management Rights.  This is a major area of dispute in the FPAA.  The outcome of the controversy normally revolves around the meaning of the language in the collective bargaining agreement.  The municipality is usually arguing that the contract grants it the authority to take a particular action (usually via a management right) and the union is arguing the opposite.  In these situations the union normally argues that a past practice exists between the parties to handle a matter in a certain way and that this past practice controls the outcome of the dispute."

PERB is the Public Employees Relations Board. They have a really interesting site here that has a lot of information on it. I would encourage you to check this page out on their website and read some of the cases there. One of the cases that I found fascinating was this case discussing when a Union member has the right to have a Union Representative present during polygraph tests administered during internal investigations. We plan on posting more of this information soon. Enjoy!


ALSO: PLEASE DON'T FORGET TO EMAIL US AT LAWTONPOLICEUNION@GMAIL.COM IF YOU WANT TO BE A UNION STEWARD FOR YOUR SHIFT.


  
  

Detective Mark Geer (and friends) nab a duo who ran from the police in a stolen vehicle.

From the Lawton Constitution - 08/25/10 

LPD Sgt. Fernando Diaz keeping the school zones safe

From the Lawton Constitution, August 20, 2010
 

A Closer Look At The Stillwater Decision

Date: 07-06-2010

Case Style: City of Stillwater v. International Association of Fire Fighters

Case Number: 2010 OK 55

Judge: Winchester

Court: Supreme Court of Oklahoma

Plaintiff's Attorney: John E. Dorman, City Attorney, Chanda R. Graham, Assistant City Attorney, Stillwater, Oklahoma , for plaintiff/appellant.

Defendant's Attorney: Steve Hickman, Fraiser, Frasier & Hickman, L.L.P., Tulsa, Oklahoma, for defendant/appellee.

Description: ¶1 The essential issue before this Court is whether a contractual term regarding an increase in salary in the second year of a two-year collective bargaining agreement between the City of Stillwater and the Union representing the City's firefighters is void because it violates Article 10, § 26, of the Oklahoma Constitution. We hold that the contractual term increasing the salary of the firefighters in the second year violates the constitution of this state.

I. FACTS AND PROCEDURE

¶2 The City of Stillwater, the appellant, and the International Association of Fire Fighters, Local 2095, the appellee, brought to arbitration a dispute over a collective bargaining agreement dated July 26, 2007. After the arbitrators heard the matter, the Opinion and Award of the Board, granted December 10, 2008, found the firefighters were entitled to a 6.1% wage increase. The City petitioned the District Court of Payne County to vacate the arbitration decision and both parties moved for summary judgment. The court granted the motion of the Union and denied the motion of the City.

¶3 The district court made findings of fact in its order dated July 29, 2009. Those facts include the following. The collective bargaining agreement covered two fiscal years, from July 1, 2007 through June 30, 2009. It contained a formula for fixing a salary scale based on the average salary paid to firefighters by certain named cities located in Oklahoma. In the first year, the firefighter's compensation was fixed and paid according to the formula. The agreement provided for a new survey of the cities in January 2008, the second year of the contract, and that the agreement be reopened in 2008 "for the sole purpose of this wage adjustment". If the City failed to appropriate funds by June 30, 2008, for the fiscal year 2008-2009, the City and Union were to immediately enter into good faith bargaining for the 2008-2009 contract year on monetary issues only.

¶4 Under the formula found in the agreement, the January 2008 wage survey indicated an average wage increase of 6.1%. However, the City appropriated funds for a 3% raise for the fiscal year. The Union declined that raise, but countered with an offer to accept a 6.1% raise. After the City declined the Union's offer, the matter was submitted to arbitration. The arbitration board awarded the Union the 6.1 % raise, the City appealed and this Court granted the City's motion to retain the cause.

II. COLLECTIVE BARGAINING AGREEMENT

¶5 In the City's Petition to Vacate Arbitration Decision the City asserts the arbitration board rendered a decision that does not draw its essence from the collective bargaining agreement, exceeds the board's authority and violates public policy. More specifically, the City argues that the decision (1) is based on general considerations of fairness and equity rather than the express terms of the agreement; (2) does not give effect to the express terms of the agreement; (3) imposes legislative requirements on the City that are not expressly provided in the agreement; and (5) commands a result that violates Oklahoma's constitution. The City relies on Wyatt-Doyle & Butler Engineers v. City of Eufaula, 2000 OK 74, 13 P.3d 474. That case held that a municipality cannot create an obligation one year that results in a debt in a succeeding year without violating Article 10, § 26 of Oklahoma's constitution. Wyatt-Doyle & Butler Engineers, 2000 OK 74, ¶ 14, 13 P.3d at 479.

¶6 The Union answered in a motion to dismiss. It asserted that the dispute taken before the arbitration board was interest arbitration and not grievance arbitration. "Grievance" arbitration involves interpreting a collective bargaining agreement and subsequently resolving a dispute between the public employer and the public employee. "Interest" arbitration involves the resolution of an impasse in collective bargaining over the terms of a new contract. City of Bethany v. Public Employees Relations Board,1995 OK 99, ¶ 1, n. 3, 904 P.2d 604, 607, n. 3.

¶7 The Union argued that when the City rejected the second year of the two-year agreement, the rejection reopened the monetary issues. As authority, the Union cites 11 O.S.Supp.2009, § 51-108.1 The title page of the Opinion and Award of Board of Arbitration states "Interest Arbitration - Wages" and states the years as 2008-2009. Page two of the opinion in the General Background states: "The parties have negotiated a wage reopener for the second year of their two-year contract. It is the wage reopener that results in this dispute." The issue as articulated by the board of arbitration is "Whether IAFF Local 2095 employees are legally entitled to a 6.1% across the board pay raise, effective July 1, 2008, by virtue of their CBA with the City". The board of arbitration stated that the parties had each stipulated its "last best offer", 3% for the City and 6.1% for the Union.2 The board addressed the constitutional argument that an obligation had been created in one year which would be paid in the next year, and rejected City's assertion that the obligation had been created in a previous year.

¶8 However, the board concluded in making its award that the Union is "legally entitled to a 6.1% wage adjustment as negotiated by the parties pursuant to contract." In a dissenting opinion, one of the members of the board observed that the parties made a two-year agreement, and that to make the agreement legal the parties inserted language recognizing that any wage increases in year two of the agreement would be awarded only if funds were appropriated by the City Council. He continued in his dissent that the parties had a lengthy history of collective bargaining and the Union knew or should have known of the limitations on the city's funding abilities. Article 14, § 1 entitled "Wages/Hours" in the collective bargaining agreement included the sentence "Salary movement is subject to the appropriation of funds by the City Commission." The majority of the board of arbitration construed that language to reach a result favorable to the Union.

III. DISCUSSION

¶9 The board and the Union characterize this dispute as interest arbitration, but the board's opinion constantly referred to and construed the previous year's agreement between the City and the Union. The board used the formula provided in the previous year's agreement to set the salary of the firefighters and to bind the City to honor that agreement. Even though the agreement did not set the actual amount of their salaries in the previous year, the obligation is created in the previous year.

¶10 The method the City attempted to use to keep the contract from violating Oklahoma's constitution was to insert the wording that the salary increase would be "subject to the appropriation of funds by the City Commission" but when the City Commission agreed to an increase of only 3%, the board determined that the disputed language was a "mere recognition that the funds are to be appropriated by the City Commission once the deal [was] made, a condition subsequent."3 The board construed the contract, explained its construction and made a determination in favor of the Union based on the two-year contract. This it is forbidden to do.

¶11 Article 10, § 26 of the Oklahoma Constitution provides in pertinent part:

"Except as herein otherwise provided, no county, city, town, township, school district, or other political corporation, or subdivision of the state, shall be allowed to become indebted, in any manner, or for any purpose, to an amount exceeding, in any year, the income and revenue provided for such year without the assent of three-fifths of the voters thereof . . . ."

¶12 The Union, in their claim that the issue before the board of arbitration was merely interest arbitration, urges that such arbitration is permitted pursuant to 11 O.S.Supp.2009, § 51-108, and therefore does not violate the constitution. This Court has held that this statute does not, on its face, violate Article 10, § 26 of the Oklahoma Constitution, but that statute could be unconstitutional as applied. Fraternal Order of Police v. City of Choctaw, 1996 OK 78, ¶ 26, 933 P.2d 261, 268. When the board of arbitration construes a previous year's agreement to explain its decision in favor of the Union, that explanation reveals that the parties' appearance before the board involved grievance arbitration, not interest arbitration. We reject the Union's characterization of the arbitration as interest arbitration.

¶13 Our previous cases are consistent that a previous year's agreement cannot be used to set subsequent year's salaries of municipal employees because the municipality cannot create an obligation one year that results in a debt in a succeeding year. Wyatt-Doyle & Butler Engineers, 2000 OK 74 ¶ 14, 13 P.3d at 479. Our state constitution forbids the City of Stillwater from becoming indebted "in any manner" when that debt is created in a previous year. Using a formula agreed to in a previous year to obligate the city to a pay scale the succeeding year is prohibited. The city through such an agreement cannot be obligated to make such a payment established by a previous-year's formula because it would constitute a charge against municipal funds beyond the fiscal year covered by the expired agreement. See, City of Tulsa v. Public Employees Relations Bd., 1990 OK 114, ¶ 1, 845 P.2d 872, 873. The purpose behind the constitutional provision is to force cities and municipalities to operate on a cash basis, and to prevent indebtedness payable out of tax revenues from extending beyond one year. City of Del City v. FOP, Lodge No. 114, 1993 OK 169 ¶ 5, 869 P.2d 309, 311.

¶14 In the City of Tulsa one question answered by the Court was whether a municipality was obligated to continue paying its employees under a wage provision in an expired collective bargaining agreement until a new agreement is reached, and the Court answered that the city was not obligated. City of Tulsa, 1990 OK 114, ¶ 1, 845 P.2d 872, 873. The board of arbitration and the district court had imposed this rule on the City of Tulsa through a legal concept known as the "dynamic status quo", which would prohibit unilateral changes made by an employer during negotiations for a new collective bargaining agreement. City of Tulsa, 1990 OK 114, ¶ 16, 845 P.2d 872, 876-877. The Court held that a city's contract is not valid if it constitutes a charge against municipal funds beyond the fiscal year. City of Tulsa, 1990 OK 114, ¶ 22, 845 P.2d 872, 878.

¶15 In a similar case, the City of Del City, the Court addressed a legislative attempt to accomplish the same result as the judicially created dynamic status quo. The issue in that case was the constitutionality of the "Evergreen" clause as it appeared in the Oklahoma Fire and Police Arbitration Act, 11 O.S.1991, § 51-105. The terms of that statute would have continued an existing collective bargaining agreement with a city beyond its stated date of expiration, and into the future "until a new agreement [was] reached". City of Del City, 1993 OK 169 ¶ 1, 869 P.2d 309, 310. The Court held that the Evergreen Clause violated the Oklahoma Constitution and referenced the previous City of Tulsa holding. City of Del City, 1993 OK 169 ¶¶ 6, 37, 869 P.2d 309, 311, 318. Citing In Protest of Kansas City So. Ry. Co., 1932 OK 328, 11 P.2d 500, the Court observed that the limitations are binding not only on the municipality, but also on the legislature. City of Del City, 1993 OK 169 ¶ 20, 869 P.2d 309, 314.

¶16 As in Wyatt-Doyle & Butler, the Uniform Arbitration Act,4 12 O.S.Supp.2009, §§ 1851-1881, does not prohibit review of the issue by this Court. Wyatt-Doyle & Butler, 2000 OK 74, ¶ 1, 13 P.3d 474, 475. The order of the District Court is reversed. The cause is remanded with instructions to enter judgment for the City of Stillwater in a manner consistent with this opinion.

Outcome: Reversed and remanded with instructions.

(See here for the case on www.oscn.net.)

Multi-Year Contracts Ruled Unconstitutional

Oklahoma's high court rules in city of Stillwater's favor

By Chris DayStillwater NewsPress

STILLWATER, Okla. — Stillwater doesn’t owe city firefighters a 6.1 percent raise, the Oklahoma Supreme Court has unanimously decided.

The case stems from a July 2008, two-year contract between the city and International Association of Fire Fighters Union Local 2095. The contract called for a wage adjustment in the second year of the contract. Stillwater officials offered a 3 percent raise, and union representatives wanted a 6.1 percent raise, based upon wages of similar-size fire departments in the state.

Eventually, an arbitration board ruled the union deserved a 6.1 percent raise. District Judge Donald L. Worthington upheld the arbitration ruling, and city officials appealed Worthington’s ruling to the state Supreme Court.

Tuesday, the Oklahoma Supreme Court reversed the arbitration board and Worthington.

International Association of Fire Fighters Local 2095 President Jay Willis said the Supreme Court’s decision surprised Stillwater firefighters.

“We felt the arbitration board and district judge followed state law ...,” he said.

Willis said the union is talking with its attorney, Steven R. Hickman of Tulsa, to decide if any more court action is warranted.

The Supreme Court looked at previous cases to rule a previous year’s agreement cannot be used to set a subsequent year’s salaries, Assistant City Attorney Larry Simmons said.

The Supreme Court cited a 1990 city of Tulsa court decision, which determined a municipality wasn’t obligated to continue paying its employees under a wage provision in an expired collective bargaining agreement until a new agreement was reached.

The firefighter’s union has ratified a new contract with the city of Stillwater. Councilors have not voted on the contract, yet, Willis said.

(This article is from the Stillwater NewsPress, July 7th 2010. You can find the original article here.)

Union Meeting - 08/19/2010 1630hrs

This afternoon's meeting was standing room only! The membership should be commended for such a strong showing.

For obvious reasons we cannot list the complete details of everything covered (the City would love that information), however we can say that the meeting was very informative. Some of the things that were discussed were:

• With the advent of Tommy Harrell retiring Brian Morris is currently serving as the interim Union President. 
• The current Executive Board consists of (in no particular order): Brian Morris, Clay Houseman, Neal Armstrong, and David Williams.
• The election for the new Union President will take place in January 2011.   
• We are currently in contract negotiations with the City but we have not come to terms with them. 
• Multi-year contracts (which the City is leaning towards) have recently been ruled illegal. (See article about Stillwater firefighters in additional post.)
• Regular Union meetings will resume on the first Thursday of every month. The time and place has yet to be established. If you have suggestions please email them to lawtonpoliceunion@gmail.com. When we know the time and place for the next meeting we will post it here.
• We are seeking Union Stewards from each shift. The new shift change roster is out so if you know where you are going and you would like to help in this capacity please email us with your name and shift assignment at lawtonpoliceunion@gmail.com.  
• Members: please make sure you use your personal email addresses when contacting us since we cannot use City email for Union business. 
• Also, to maximize the effectiveness and informational value of this blog we need your help. If you hear or read about something Union-related (i.e. articles about our City officials getting pay raises, BRAC numbers, area wage studies, related City Council news, labor law rulings, due process rulings, etc.) please pass it along to us via email. We will add it to the blog. It's an overused phrase, but knowledge really is power.    

LPD Sgt. Henry Bryant eyes a recent wreck

From the Lawton Constitution, August 19th 2010

Upcoming Meeting!

There will be a Union meeting open to all Union members on this Thursday, August 19th, in the briefing room (at the station) at 4:30 p.m. Please spread the word and encourage members to show up.

We will be adding information to this blog to keep the membership updated on Union business such as meeting times, contract negotiations, news, etc.

You can also email the blog at lawtonpoliceunion@gmail.com.

More to come!