LTC 145-2010 Status Update Regarding Recent Labor Relations Items
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OFFICE OF THE CITY MANAGER 2~IO Pj~sl' ((77 ji IOC 43
NO. LTC # 145-2010 LETTER TO COMMISSION
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To: Mayor Matti Herrera Bower and Members of the City Commission
From: Jorge M. Gonzalez, City Manager
Date: May 12, 2010
Subject: STATUS UPDATE REGARDING R N R RELATIONS ITEMS
The purpose of this Letter to Commission (LTC) is to provide information regarding the
status of recent legal proceedings initiated by some of the City's Unions. These include
recent: (1) arbitrations; (2) unfair labor practices; and (3) unit clarification petitions.
I. Grievance and Arbitration Process
Under Chapter 447, Florida Statues, public employers and bargaining agents (Unions)
are required to negotiate a grievance procedure to be used for the settlement of disputes
between employer and employee, or groups of employees, involving the interpretation or
application of a collective bargaining agreement. The grievance procedure mutually
agreed to by both parties must have, as its terminal step, a final and binding disposition
by an impartial neutral arbitrator, mutually selected by the parties. Although the specific
grievance procedures vary amongst the City's five (5) Collective Bargaining Units, the
framework of the process is consistent throughout. The grievance process is comprised
of three (3) steps, with the first two (2) steps being handled at the department level. The
City Manager's designee for Labor Relations hears all Step Three Grievances. If the
Grievant is dissatisfied with the Step Three Grievance response, they may elect to move
to arbitration.
If an arbitration takes place, all proceedings conducted by an arbitrator are in conformity
with the contractual obligations of the parties. The conduct of the arbitration proceeding
is under the arbitrator's jurisdiction and control, and the arbitrator's decision must be
based upon the evidence and testimony presented at the hearing or otherwise
incorporated in the record of the proceeding. Both parties are required to equally share
all costs associated with the arbitration. The arbitrator's decision is final and binding.
Most recently, the City has been involved in four (4) arbitrations dealing with City
employees who were terminated. To date, the City has prevailed in three (3) of these
arbitrations. Two of these were for CWA employees who had been terminated and one
was for a GSA employee who had also been terminated. Since the City prevailed, the
terminations were upheld and those employees did not return to work for the City. The
City is still awaiting the arbitrator's final ruling on the fourth arbitration case regarding an
AFSCME employee who was terminated.
In addition to the four arbitrations referenced above, there are currently a number of
other arbitrations that have been requested by the Unions but are not actively being
pursued by the Unions or are otherwise pending for various reasons. Some of these
date back as early as 2002 and include the following breakdown:
LTC Labor Relations Status Update
May 7, 2010
Page 2 of 4
Union # of outstandin arbitrations
AFSCME 10
CWA 39
FOP 3
GSA 1
IAFF 1
II. Unfair Labor Practices
An Unfair Labor Practice (ULP) is any act committed by a union or an employer that
restrains or otherwise interferes with workers' union rights under the National Labor
Relations Act. A few examples of ULPs include: encouraging or discouraging union
membership; refusing to bargain collectively or failing to bargain collectively in good
faith; and interfering with, restraining or coercing public employees in the exercise of any
protected rights. A formal allegation of a party engaging in an unfair labor practice is
initiated by the petitioner filing a charge with the Public Employees Relations
Commission (PERC), who then reviews the charge to determine its sufficiency.
By way of background, PERC was created by the Florida Legislature to assist in
resolving disputes between public employees and public employers. PERC serves as an
independent, neutral agency that is appointed by the Governor and holds hearings
pertaining to collective bargaining issues and resolves disputes regarding alleged Unfair
Labor Practices (ULP). In addition, PERC is also tasked with registering labor unions,
issuing decisions regarding unit clarification petitions and oversees federally provided
mediators and privately employed arbitrators who resolve impasses in labor
negotiations.
If, upon review, the charge is determined to be sufficient, PERC notifies each party.
Each party is then provided with the opportunity to file a response. PERC may issue
prehearing orders that require the parties to provide written statements of relevant
issues of fact and law, and such other information as PERC may require expediting the
resolution of the case.
Whenever the proceeding involves a disputed issue of material fact, an evidentiary
hearing is conducted with a hearing officer appointed by PERC. The hearing officer is
essentially a judge who hears the facts of the case and then issues their Recommended
Order to PERC for review. PERC makes the final binding determination and issues a
Final Order accepting or rejecting the hearing officer's recommendation. Should PERC
determine that the alleged ULP has been committed, they will issue and serve an order
requiring the appropriate party or parties to cease and desist from the unfair labor
practice and take positive action.
The following is the most recent ULP which was filed and heard at a PERC evidentiary
hearing:
Fraternal Order of Police Allegation of ULP
On December 3, 2009, the Fraternal Order of Police (FOP) filed an Unfair Labor Practice
charge against the City (Case Number CA-2009-102), alleging that the City violated Fla.
Stat. §§ 447.501(1)(a) and (c), because the City unilaterally changed working conditions
when it forced Field Training Officers (FTO) to work in the Field Training Officer
LTC Labor Relations Status Update
May 7, 2010
Page 3 of 4
Program. The FOP argued that participation in the FTO program is a term and condition
of employment because they believe that such participation is voluntary.
The City argued that the duties performed by FTOs and Field Training Sergeants (FTS)
are within the scope of their basic employment function; thus providing the City with the
statutory right to require the FTOs and FTSs to perform their duties without bargaining.
Furthermore, the City argued that we have a management right to assign duties as
needed.
The FTO provision in the 2006-2009 contract, which required that the City pay
approximately $115 per pay period to each FTO, "sunsetted" on September 30, 2009.
Per the terms of the sunset provision and the last FOP contract, the FTO pay then
reverted to a pay of an additional $1.00 per hour for each hour(s) an FTO is assigned to
train (instead of the $115 per pay period).
The goal of the FTO program is to ensure that Probationary Police Officers are
sufficiently trained in order to become patrol ready solo police officers, who are capable
of handling all types of calls for service.
On February 23, 2010, an evidentiary hearing was held where the City and FOP each
presented their respective positions. On April 7, 2010, the Hearing Officer issued his
recommended order dismissing the charge, stating that the FOP failed to demonstrate
by a preponderance of the evidence that there had been a violation of Section
447.501(1)(a) and (c). The hearing officer found that assigning tasks that are within the
scope of basic employment duties that the employees were hired to perform is a
management right and a matter of law.
On May 5, 2010, the City received PERC's final order adopting the Hearing Officer`s
Recommended Order and dismissed the FOP's ULP.
III. Unit Clarification Petitions
The unit clarification proceeding is used to determine which employees are included in a
Collective Bargaining Unit recognized by PERC. PERC considers petitions for unit
clarifications to determine whether or not certain job classifications share a "community
of interest" with other members of a unit and should appropriately be included within a
bargaining unit. Petitions for Unit Clarification may be filed by the employer, the
bargaining unit, or jointly. PERC will clarify a unit by determining whether a parficularjob
classification is in the unit when the job classification was created or changed after
certification, if it was included in or omitted from the bargaining unit by mistake, or when
the employer and the employee organization agree that clarification is necessary. The
following is the most recent unit clarification that has been filed and that a PERC
evidentiary hearing has taken place:
International Association of Fire Fighters Petition for Unit Clarification
On November 18, 2009, the International Association of Fire Fighters, Local 1510 (IAFF)
filed a petition for unit clarification to PERC requesting to include the following
classifications in the IAFF, Local 1510 bargaining unit: (1) Fire Division Chief, (2)
Battalion Chief, (3) Fire Protection Analyst and (4) Fire Inspector. During the evidentiary
hearing, held on March 5, 2010, the Union withdrew the Fire Division Chief classification
from its petition.
LTC Labor Relations Status Update
May 7, 2010
Page 4 of 4
At the evidentiary hearing, all parties were afforded the opportunity to appear and
present evidence, cross-examine witnesses, and participate fully in the hearing. The
Union contended that it properly invoked the unit clarification petition because the
Battalion Chief classification is a newly created classification and the incumbents
exercise no more supervisory authority than that exercised by Captains and Lieutenants
which are already included in the existing bargaining unit. The Union also contended that
the Fire Protection Analysts and civilian Fire Inspectors classifications were created after
the existing unit was defined and should be included in the existing unit because they
share a community of interest with current unit members.
The City argued that the Battalion Chiefs are not appropriately included in the existing
unit because they are already excluded from the unit description under the wording
"other chief classifications established by the City" and because they possess a
supervisory conflict of interest with bargaining unit members. The City further argued
that the Fire Protection Analysts and the Fire Inspectors should not be included in the
existing unit because they do not share a community of interest with the IAFF unit
members.
The Hearing Officer's Recommended Order was issued on March 30, 2010 and
recommended to dismiss the IAFF's Unit Clarification Petition. The Union did not file
exemptions to the Hearing Officer's Recommended Order and therefore, PERC adopted
its Final Order on April 19, 2010 as per the Hearing Officer's recommendation to dismiss
the IAFF's unit clarifications.
Subsequently, the City received a Certification Petition from PERC on April 27, 2010
notifying the City that the IAFF, Local 1510 has petitioned for the classification of Fire
Battalion Chief to be included in a supervisory fire personnel unit (union). There are
currently three (3) Battalion Chiefs. If approved by PERC, this would create a
supervisory union for the Battalion Chiefs that is separate from the IAFF, Local 1510,
creating a sixth union in the City.
As you know, the City's Labor Relations team continues collective bargaining with all the
Unions for successor collective bargaining agreements and will continue to keep the
Mayor and City Commission posted on our ongoing negotiations.
If you have any questions or need any additional information regarding the information
presented in this LTC, please feel free to contact me or Ramiro Inguanzo, Human
Resources Director.
JMG/HMF/RI/cg
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