LABOR RELATIONS FPAA HIGHLIGHTS AND HOW DO YOU WORK WITH IT

Transcription

1 LABOR RELATIONS FPAA HIGHLIGHTS AND HOW DO YOU WORK WITH IT

2 HIGHLIGHTS OF FPAA FPAA is the Fire and Police Arbitration Act 11 O.S et seq Prohibits permanent members of a paid Police or Fire Department from the right to strike for the benefit or right to bargain collectively over wages, hours and other terms and conditions of employment. City cannot take any action against an employee for being a member or not being a member, for paying dues or not pay dues, of a recognized collective bargaining organization.

3 Bargaining Agent any lawful association, fraternal organization, labor organization, federation or council having as one of its purposes the improvement of wages, hours and other conditions of employment Fire fighters and Police Officers permanent paid members of any fire or police department, excluding the Chief and one (1) administrative assistant designated by the Chief. Corporate Authorities proper officials within any municipality whose duties are to establish wages, salaries, rates of pay, hours, working conditions, and other terms and conditions of employment. Strike the concerted failure to report for duty, the willful absence from one s position, unauthorized holidays, sickness unsubstantiated by a physician s statement, the stoppage of work, or the abstinence in whole or in part from the full faithful and proper performance of the duties of employment, for the purpose of inducing, influencing or coercing a change in the conditions, compensation, rights, privileges or obligations of employment.

4 Collective Bargaining the performance of mutual obligation of the municipal employer and representative of the employees to meet at reasonable time, including meetings appropriately related to the budget making process; to confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement; and to execute a written contract incorporating any agreement reached. Does not require either party to make a concession.

5 6 - Instituting or attempting to institute a lockout. Unfair Labor Practice Corporate Authority 1 - Interfering with, restraining, intimidating or coercing employees in the exercise of the rights guaranteed them; 2 - Dominating or interfering with the formation, existence or administration of any employee organization or bargaining agent; 3 - Interfering in any manner whatsoever with the process of selection by fire fighters or police officers of the respective bargaining agents or attempting to influence, coerce or intimidate individuals in such selection; 4 - Discharging or otherwise disciplining or discriminating against a police officer of fire fighter because he has signed or filed any affidavit, petition or complaint or has given any information or testimony under this article or because of his election to be represented by the bargaining agent; 5 - Refusing to bargain collectively or discuss grievances in good faith with the designated bargaining agent with respect to any issue coming within the purview of this article; or

6 Unfair Labor Practice Bargaining Agent 1 Interfering with, restraining, intimidating or coercing employees in the exercise of the rights guaranteed them by this article; 2 Interfering with or attempting to coerce the corporate authorities in the selection of the representatives for the purpose of collective bargaining or the adjustment of grievances; or 3 Refusing to bargain or discuss grievances in good faith with the proper corporate authorities with respect to any issue coming within the purview of this article.

7 A petition filed by thirty percent (30%) of fire or police officers wishing to be represented for collective bargaining; or asserting that the designated representative is no longer the representative of the majority shall cause an election. If more than one labor organization claims to represent more than ten percent (10%) of the employees in the unit then they will also be placed on the ballot. In an election where none of the choices receives a majority, but a majority of all votes cast are for representation by some labor organization then a run-off election shall be held. The labor organization which receives the majority of votes cast shall be designated as the exclusive representative. There can only be one (1) election in any twelve (12 ) month period. The PERB Board may also certify a labor organization without an election if, in its view, a fair and untrammeled election cannot be conducted because of the employer s unfair labor practices.

8 Public Employees Relations Board PERB - Consists of three members appointed by the Governor - Board members serve five (5) year staggering terms -One generally to represent the Union side -One generally to represent the City side -One neutral The parties are to meet at reasonable times and confer in good faith within ten (10) days after receipt of written notice from a bargaining agent request for negotiations. If money or items requiring appropriations of money are involved then notice must be made at least 120 Days before the last day on which moneys can be appropriated. ( )

9 If the parties are unable to reach an agreement within thirty (30) days, including the date of first meeting, any and all unresolved issues shall be submitted to arbitration, upon request of either party Within five (5) days of declaring impasse each party must select an arbitrator to be their representative on the arbitration panel. The two selected arbitrators then have five (5) days to agree on a third arbitrator to serve as a neutral and Chair. If the two arbitrators can t agree on a third arbitrator then they submit a request for arbitrators from the Federal Mediation and Conciliation Service (FMCS). After the parties receive the list they have five (5) days to alternate striking names until only one arbitrator is left on the list. The employer always makes the first strike.

10 The two last best offers are submitted to the vote of the people. The ballot is to clearly state the total dollar amount of the each last best offer. Also, the ballot is to show the percentage of increase or decrease both offers have over or under the last contract The Arbitration Board Chair shall call a hearing to be held with ten (10) days of selecting the Chairman and give at least seven (7) days notice to the other two (2) arbitrators, and respective party representatives. At least seven (7) days before the date of the hearing the parties shall submit to the Board and each other both resolved and unresolved issues in a written arbitration statement. The Statement is also referred to as the Last Best Offer. The hearing is to end within twenty (20) days of when it starts. The Arbitration Board, by action of the majority, has seven (7) days to provide the parties with a written decision on which last best offer was selected. If the City s last best offer was not selected the City has ten (10) days to call for a special election.

11 The Arbitration Board is to limit or base their decision on the following five (5) factors: 1 Comparison of wage rates, insurance, retirement, other fringe benefits or hourly conditions of employment of the fire or police department with the prevailing wage rates or hourly conditions of employment of skilled employees of the building trades and industry in the local operating area; 2 - Comparison of wage rates, insurance, retirement, other fringe benefits or hourly conditions of employment of the fire or police department with the prevailing wage rates or hourly conditions of employment maintained for the same or similar work of employees exhibiting like or similar skills under the same or similar working conditions in the local operating area; 3 - Comparison of wage rates, insurance, retirement, other fringe benefits or hourly conditions of employment of the fire or police department with the prevailing wage rates or hourly conditions of employment of fire or police department in cities, town, or other political subdivisions of comparable size and economic status both within and without the State of Oklahoma;

12 Interest and welfare of the public and revenues available to the municipality; or 5 Comparison and peculiarities of employment in regard to other trades or professions, including specifically: hazards of employment, physical qualifications, educational qualifications, mental qualifications, and job training and skills.

13 Fees/expenses associated with the parties representative arbitrator shall be born by the respective party and the costs of the third arbitrator shall be shared equally All rules, regulations, fiscal procedures, working conditions, departmental practices and manner of conducting the operation and administration of the fire and police department currently in effect on the effective date of any negotiated agreement shall be deemed as part of said agreement unless and except as modified or changed by the specific terms of such agreement.

14 A request for negotiation that would require the appropriation of moneys must be received 120 days before the last day on which moneys can be appropriated by the City. When is the last day Cities can appropriate moneys or when is the last day the City must approve the next fiscal year budget? Seven (7) days prior to the beginning of the next fiscal year. So, the request for negotiations involving money must be made 127 days prior to the beginning of the fiscal year February 24 or February 25 on Leap year. Any person violating the provisions of this act shall be fined no less than $10.00 nor more than $ for each day of the violation. A conviction shall be grounds for immediate dismissal from public employment.

15 How Do I work with FPAA or What Do I need to Know Let s review a few key areas:

16 TIMING Knowing the time limits for different actions is critical.

17 Receive Notice to Bargain Last Day Start Bargaining

18 First Day Declare Impasse Select Party Arbitrator Last Day Notice to Bargain Party Select Third Arbitrator

19 Party Select Third Arbitrator Receive FMCS List Select Chair Notify Parties of Hearing Date Submit Last Best Offer

20 Last Day to Start Hearing

21 Hearing must be Completed Board Submit Decision Last Day File Request for Election

22 Last Day File Request for Election Last Day City Call Election

23 Warr Acres 2007 Case No City Claimed Union failed to provide timely notice to bargain over monetary items. CBA Union shall give written Notice of request for collective bargaining to the City least one hundred twenty (120) days prior to June 30, it is the obligation of the bargaining agent to serve written notice of request for collective bargaining on the corporate authorities at least one hundred twenty (120) days before the last day on which moneys can be appropriated by the municipality. PERB Ruling Majority Opinion Section 2.2 of the CBA was inputted to clarify the language of Statute, as such, the Union filed their request to bargain timely. Dissenting Opinion The execution of the Collective Bargaining Agreement was neither a clarification not a waiver of the provision of the Fire and Police Arbitration Act or the Oklahoma Municipal Budget Act. The Union s notice was not timely, I would grant summary judgment in favor of the City.

24 Perkins 2003 Case No PD Member of the Fire Union files a Petition with PERB for decertification Election on January 2, January 1, 2003 PERB was closed for the Holiday. The Petition was filed 179 days prior to the stated expiration of the CBA. By OAC: (3) - the Board shall conduct no representation election for decertification which is filed less than one hundred eighty (180) days prior to the stated expiration date of a valid CBA. OAC: the requirement that a petition for decertification be filed not less than 180 days, not more that two hundred forty (240) days, prior to the stated expiration date of a CBA is not subject to the computation of time rule which allows an act to be performed on the next regular business day when the last day for performance of the act falls on a legal holiday. PERB Ruling Union Motion to Dismiss is grant based on timeliness. It is a longstanding rule of construction that where two provision conflict, one of which is special and clearly includes the matter in controversy, and prescribes different procedures from those in a rule, the special rule and not the general rule applies.

25 Selecting the Administrative Assistant Who can serve as Administrative Assistance? Who can decide who will serve as Administrative Assistance? Does this have to be negotiated? Unfair Labor Practices: Direct Dealing Stillwater 2011 Case No ULPC-504

26 Also, an underlying consideration is a desire to simplify and streamline the contract. As such, the City has proposed that those items that are common to all employee groups be removed from the contract as these are provided in the City Employee Policy Manual. The Alcohol and Drug Testing provision, sick leave accrual and usage, and the Employee Assistance Program are examples of these items. City Manager s Office 723 S. Lewis Street/P.O. Box 1449 Stillwater, Oklahoma Office: (405) Fax: (405) Web: stillwater.org March 3, 2011 This communication provides an explanation of the City s position in formulating a bargaining proposal for the fiscal year 2012 collective bargaining agreement between the City of Stillwater and Fraternal Order of Police Lodge #102. City revenues continue to be a major driver. Thus far, FY 2011, City revenues are up from FY 2010; however, they have still not recovered to FY 2009 levels.

27 The proposal reflects a desire to simplify the compensation structure and provide more flexibility to management to reward performance. To this end, the City proposes rolling certain regular additional pay items (Proficiency Awards, Assignment Pay, and Uniform Maintenance Allowance) into base salary. This would result in an increase to base salary even to those members who have not previously qualified for Proficiency Awards. The City has collective bargaining agreements with four different bargaining agents. In an effort to achieve more parity among all contracts, the City has proposed to remove provisions that provide enhanced benefits that are not related to the uniqueness of police employment. An example is the provision regarding health insurance premiums. The City does recognize some provisions are unique to police officers and propose to continue items such as higher annual leave balances than other employees, and to continue longevity and education incentive pay for those members currently eligible.

28 Items of special note from this case An employer s free speech right to communicate his views to his employees is firmly established and cannot be infringed by a union or the Board (N.L.R.B.) NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 617 (1969) An employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a threat of reprisal or force or promise of benefit. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969) PERB Ruling Summary Judgment in favor of the City The City may communicate its position to the Union membership as long as it continues to bargain collectively in good faith, This from the City Manager that sought no response from employees, that expressly acknowledged the Union as the bargaining representative of the employees, that could not be construed as an invitation for direct bargaining, that threatened no reprisal or force and that contained no promises of benefit, does not violate (6a) (5).

29 Norman 2006 Case No Norman was having a significant budge shortfall and was preparing to take steps to address a $4,346,572 deficit. As part of the action of the City Manager was to reach out to Department Heads and employees for ideas to cut spending. The City Manager directed Department Heads to hold meeting with employees to obtain their input on ways to save money and address the pending deficit. Some of the things the City Manager outlined as possibilities included: hiring freeze, very limited travel, lay-offs, furloughs, salary freezes, etc. The City was currently engaged in negotiations with the Unions. The Fire Chief held employee meetings outside of the negotiation process ass requested by the City Manager. The IAFF Union President was present at one of the employee meetings that a firefighter said he would rather see a Truck taken out of service over layoffs. The Union President indicated to the Fire Chief, these discussions should be addressed with the union representatives. The Chief responded he was just following orders.

30 Special Findings: Attempts at getting the employee s ideas regarding cost saving measures may be legitimate attempts to communicate. However, when such attempts take place during the collective bargaining process and are combined with the threat of layoffs, such actions constitute interfering with, restraining, intimidating or coercing employees in the exercise of the rights guaranteed them by Article 51 of the Oklahoma Statutes in violation of 11 O.S. 2001, (6a)(1). The holding of meetings during the collective bargaining process seeking suggestions on how money could be saved in order to avoid layoffs creates the potential of the discussion of topics subject to collective bargaining. These topics could include matters specifically covered by the CBA as well as changes to policies and procedures already in force. The holding of these meeting constitutes refusing to bargain collectively in good faith with the designated bargaining agent with respect to any issue coming within the purview of Article 51 of the Oklahoma Statutes in violation of 11 O.S. 2001, (6a)(5). See N.L.R.B v. M.A. Harrison Mfg. Co. Inc, 682 F. 2d 580 (6 th Cir. 1982)

31 Suggestions on how money could be saved should be solicited by the City through consultation with the Union when collective bargaining in is process. CBA Art. 6, 1 When such suggestions are requested by the City, the furtherance of the public good imposes on the union the duty to solicit such suggestions from its members aggressively and in good faith. PERB Ruling The City engaged in an unfair labor practice and shall cease and desist.

32 Impasse Arbitration Five Factors The Arbitrators are suppose to consider five factors when determining if wages and other benefits are appropriate: 1. Skilled employees of the building trades and industry in the local operating area; 2. Same or similar work of employees exhibiting like or similar skills under the same or similar working conditions in the local operating area; 3. Other fire or police departments in cities, towns or other political subdivisions of comparable size and economic status both within and without the state of Oklahoma; 4. Interest and welfare of the public and revenues available to the municipality; 5. Comparison of peculiarities of employment in regard to other trades or professions a. Hazards of employment b. Physical qualifications c. Educational qualifications d. Mental qualifications, and e. Job training and skills.

33 Last Best Offers Regressive or Hard Bargaining Cities Impacted by FPAA Town of Kiefer 2004 Case No P Town of Dibble Case No RC-12432PD PERB to expire July 1, 2012 What is impact of Statute if PERB Expires?

34 THANK YOU FOR YOUR ATTENTION and PARTICIPATION Greg Buckley City Manager City of Muskogee P. O. Box 1927 Muskogee, OK