Legal Tidbit: What is the Oklahoma Fire and Police Arbitration Act?
Les Bennett
The Oklahoma Fire and Police Arbitration Act ("FPAA") governs the relationship between municipalities and unionized firefighters, police officers, and their bargaining agents (unions). The statute's language is sometimes murky and contains numerous complex legal concepts. The bargaining statute was passed in the early 1970s, but the legal principles are still being established for bargaining, contract management, and labor relations.
Scope of the FPAA
The scope of 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 is found at 11 O.S. Section 51-101 and following.
An essential requirement under the FPAA is the "duty to bargain." The duty to bargain is broadly worded and includes "wages, hours and other terms and conditions of employment." The Oklahoma Supreme Court found the statute holds cities and towns to the highest good faith standard, meaning a city's contract team must bargain in good faith. No tricks, no games. The tradeoff under the FPAA is that police and fire labor union members are prohibited from striking under Oklahoma law.
Under the FPAA, all "permanent paid members" of any fire or police department are eligible to be bargaining unit members. Unlike other states, Oklahoma does not exempt supervisors. The only exemption from union membership is the chief and one administrative assistant. There are two significant areas of case law concerning conflicts over bargaining unit membership: (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.
Major Sources of Controversy Under the FPAA
There are several substantial areas of litigation under the FPAA. The first turns on the meaning of the act's prohibition of unfair labor practices and failure to participate in the arbitration. As mentioned above, cities and towns are required to bargain in good faith. Thus, failure to bargain in good faith can give rise to claims of unilateral action against a city. Likewise, failure to participate in arbitration is also actionable under the FPAA. These disputes often turn on whether the collective bargaining agreement contains a sufficiently broad management rights clause to authorize the management action taken.
The second substantial area of litigation under the FPAA concerns past practices and management rights. The controversy's outcome typically revolves around the meaning of the language in the collective bargaining agreement. The municipality often argues the contract grants it the authority to take a particular action (usually via a management right), and the union takes the opposite position. In these cases, the union frequently argues that a past practice exists between the parties to handle a matter in a certain way and that past practice should control the outcome of the litigation.
The third area of disputes centers around a "change in working conditions." The phrase is often poorly defined. But the general idea is that the employer subjected employees to a change in job duties, responsibilities, or working conditions such that the city should have negotiated the change with the union. For example, in the Oklahoma City Police body-worn camera case (City of Oklahoma City v. FOP 123, FMCS Case No.: 16-50120-6 (2016), the union asserted the police chief’s unilateral implementation of the body cams amounted to a “…quantum change in the working conditions of both the officers wearing the cameras as well as all other officers who might appear in the footage recorded by those cameras.” The union argued that if other policies dictatorially decreed by the chief, such as a tattoo policy, timekeeping procedure, and GPS tracking policy, could have been deemed by arbitrators to have constituted a change in working conditions, then the body-camera policy surely amounted to such a change too. The arbitrator agreed and ordered the city to sit down at the negotiation table with the union.
Types of Arbitration Provided by the FPAA
The FPAA outlines two types of arbitration. The first is interest arbitration (occurring when the parties have failed to reach an agreement via bargaining) and grievance arbitration (which resolves disputes over the meaning of the agreement once it is in place). 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's last best offers to the voters in a special election. If the parties cannot reach an 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.
The second type of arbitration is known as grievance arbitration, which is binding on all parties except in narrow circumstances that are still evolving via litigation. Grievance arbitration concerns the process where a party (city or union) submits a dispute concerning the interpretation of an existing collective bargaining agreement to an arbitrator for resolution.
In grievance and interest arbitration, arbitrators are usually selected via the Federal Mediation and Conciliation Service (FMCS). The cost of arbitration is shared between the parties, and formal evidence rules are not applied.
This is a brief overview of the FPAA, but there’s much more to learn about this important law. If you’re a union representative and need help handling a public safety labor matter, call us today at (405) 787-9950 for help. Your union and its members have many rights under the FPAA, and we’d love to help you assert those rights.
Les Bennett is a founding partner at Bennett Vernier, an Oklahoma law firm dedicated to advocating for first responders.
