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Hearing officer sides with city

By Staff | Jul 23, 2011

A state hearing officer is recommending that an unfair labor practice claim filed against the city of Cape Coral by the local police union be dismissed.
A hearing officer for the Public Employees Relations Commission submitted her recommendation on Friday, following an evidentiary hearing on June 1, where both parties presented their cases, including testimony and exhibits.
Suzanne Choppin found that the “instant unfair labor practice charge is untimely” and that the city should be awarded attorney’s fees and costs.
The city’s labor attorney said Friday that he and his client are happy.
“We are pleased that the hearing officer has vindicated the city’s legal position on the matter,” attorney Nikhil Joshi said. “That we did have the right to enforce the pre-employment agreements at issue.”
In February, the city began collecting repayment from several Cape police officers for alleged unearned wage increases. Nearly all of the officers also were subjected to a 10 percent pay cut, as well as returned to what officials deemed to be their appropriate pay step level.
According to officials, officers are required to have 60 education credits to move up in step levels and receive the higher pay provided at each level.
The involved officers had agreed to obtain the required credits as part of a pre-employment contract. However, they did not obtain the credits and still moved up in step levels, receiving the higher pay at each level, officials said.
The city was seeking about $91,275 in total from the officers.
When the city’s repayment plan went into effect, the Cape Coral Fraternal Order of Police Lodge 33 filed the unfair labor practice charge with Florida’s Public Employees Relations Commission. The charge was dismissed, but the general counsel found reason to move forward with an amended claim.
Union president Kurt Grau said Friday that his side is disappointed.
“We’re definitely surprised by it,” he said. “We thought some of the facts, she (the hearing officer) didn’t completely understand.”
The union was just as baffled by Choppin’s recommendation that the group cover the city’s expenses because the charge was “frivolous, groundless and unreasonable when filed,” according to official documents.
“We don’t feel that our complaint through them was frivolous or without merit, so we’re definitely surprised by that,” Grau said.
Joshi argued against that.
“This action should never have been brought by the union,” he said.
“The hearing officer agreed with our position that these contracts have been in effect for over two decades,” Joshi said, adding that the union has not questioned the validity or enforcement of the contracts up until this point.
According to the documents, Choppin indeed found that the union “waived the right to bargain over the agreements or their impacts by inaction.”
“The hearing officer found, in particular, you can’t file a charge now over something signed many years ago,” Joshi said. “When it becomes the status quo, that becomes our right to enforce.”
Both parties have 15 days to file exceptions in the case, which can include disputing facts, the hearing officer’s analysis or her recommendation.
“We’re analyzing it and a determination will be made on that,” Joshi said. “I’ll have to look at it (the recommendation) more closely in the upcoming days.”
Grau said he believes that the union plans to appeal the recommendation.
“From there we may file court actions,” he said. “We’re still looking into it.”
The Public Employees Relations Commission has 90 days to review the hearing officer’s recommendation and issue a final order.
In addition to filing the unfair labor practice claim with the state, the union also filed a grievance with the city regarding the issue. The police chief and city manager have both rejected the grievance, moving it into arbitration.
Grau said the union may pursue that arbitration as another option.
“They’re definitely having money problems,” he said of the officers caught up in the issue. “The FOP has had to loan money to one person.”
Not all of the involved officers are experiencing financial hardships because of the repayment plan, but about three have “been hit bad,” Grau said.