Fire and Police Arbitration Act
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.
What are the basics of the FPAA?
The 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.
What is the duty to Bargain?
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.
Who belongs in the bargaining unit?
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.
What are the two major controversies over unit membership?
The 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.
What is an Unfair Labor Practice (ULP)?
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.
How is a union certified?
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.
What is the Public Employees Relations Board (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.
Are there two types of arbitration under the FPAA?
Yes. 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.
Are there special rules governing grievance arbitration vs. interest arbitration?
Yes. 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.
What is 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.
Is there more to learn about the Fire and Police Arbitration Act?
Oh, yes. OML has a Labor Program specifically for those municipalities that are unionized. We hold meetings during the spring bargaining season and monthly bulletins are published throughout the year to give the latest information on employment and labor matters. For more information contact Sarah@oml.org.