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City seeks arbitration in police pay dispute

By Staff | Mar 10, 2011

The city of Cape Coral has asked the state to cease moving forward with an unfair labor practice claim filed by the police union and defer the issue to arbitration.
On Tuesday, the city responded to a charge filed by the Fraternal Order of Police Lodge 33 with the state’s Public Employees Relations Commission. The city made a motion to stay the state proceeding and defer it to arbitration.
The union is claiming that the city entered into illegal pre-employment contracts with several police officers and that they are not enforceable.
Nikhil Joshi, the city’s labor attorney, said the deferral became an option when the union filed a grievance with the city containing the same concerns outlined in the charge. He said the collective bargaining agreement between the city and union contains a procedure for resolving disputes of this kind.
“The city’s interpretation and the union’s interpretation differ on this matter,” he said. “We believe that this should be an issue addressed by the arbitrator.”
Gene Gibbons, the union’s attorney, argued that the grievance and the charge do not address the same issues. He said the grievance claims that the actions of the city to recover reported wage overpayments from the officers are violating contractual agreements between the two parties.
“The city is conveniently ignoring our charges,” Gibbons said.
He explained that the unfair labor practice charge alleges that the city did not follow procedure, failed to bargain in good faith and engaged in surface bargaining, among other things.
“They’re not violations of the collective bargaining agreement,” he said.
The city also requested the deferral to save time and money.
“We would have to spend money defending the city in front of PERC (the Public Employees Relations Commission) and in front of the arbitrator,” Joshi said. “It would be more financially cost efficient to be able to address the matter through one forum rather than multiple forums.”
On Monday, City Manager Gary King denied the union’s grievance, assuring that the issue would move forward to arbitration. Prior to that, the grievance went before the police chief, who deferred the complaint up to the city manager.
“We are already going to be in front of an arbitrator,” Joshi said.
A federal arbitration service will issue a panel of approved arbitrators for the process. Similar to jury selection, the city and union will then take turns eliminating names from the list until one remains to serve as the arbitrator. Both parties will present their case, then the arbitrator will make a ruling.
“It’s not any different than what we were planning on doing in front of PERC,” Joshi said, adding that the state commission can continue with its unfair labor practice proceeding if it does not agree with that decision.
Steven Meck, general counsel for PERC, said the city’s request is common.
“This is not unusual,” he said.
“The bottom line is the legal systems have a preference for the collective bargaining process, in other words, the grievance contractual procedure,” Meck added.
Before the state makes a decision on the deferral, the union will be given a chance to respond. The union’s response will be taken into account when the state decides whether to accept the motion or deny it and proceed forward.
Gibbons said the union intends to file an objection to the city’s motion.
“The union will be objecting to that request,” he said.
“We think that PERC absolutely has the right and authority and should hear this case because it deals with issues of statutory and procedural impasse,” Gibbons said.
Both sides are scheduled to present their case to the state at an April 4 hearing. The hearing would be postponed until the arbitration is complete if the state were to accept the city’s motion for a deferral, Joshi reported.
Last month, the city began collecting repayment from 10 officers for what city officials have called unearned wage increases. Eight of the officers also took a 10 percent pay cut and they were returned to what the city deemed to be their appropriate pay step level.
According to city officials, officers are required to have 60 educational credits to move up in step levels and receive the higher pay provided at each level.
The 10 officers had agreed to obtain the required credits as part of their pre-employment contracts. However, they did not obtain the credits and still moved up in step levels, receiving the higher pay at each level, city officials said.
When the city’s repayment plan went into effect, the union filed its initial unfair labor practice claim with the state. Meck later dismissed the charge for being untimely and vague. In response, the union filed an amended one.
General counsel found reason to move forward with the amended claim.
The city is seeking a reimbursement of about $91,275 from the officers.