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PERC: No unfair labor practice

By Staff | Oct 1, 2011

A state agency dismissed Friday an unfair labor practice claim that was filed against the city of Cape Coral earlier this year by the local police union.

The Public Employees Relations Commission issued a final order, siding with the recommendation of a state hearing officer. The officer determined that the claim was untimely, and the union waived its right to bargain by inaction.

The state commission is comprised of three members.

“Upon review of the record, we conclude that the hearing officer’s factual findings are based upon competent substantial evidence received in a proceeding which satisfied the essential requirements of law,” they wrote.

“We also agree with the hearing officer’s analysis of the dispositive legal issues, her conclusions of law, and her recommendations,” they continued.

The hearing officer also recommended that the city should be awarded attorney’s fees and costs as a result of the unfair labor practice charge.

Two commissioners did not agree with that part of the recommendation.

“We disagree with the hearing officer that the FOP’s charge was frivolous, groundless, or unreasonable while filed, or that it continued the litigation after it became clear the charge was without merit,” they wrote.

The commission declined to award attorney’s fees and costs to the city.

One member, however, noted that she dissented on that decision.

“I would award the city its attorney’s fees and costs based on the reason articulated by the hearing officer,” Donne Poole wrote.

In February, the city began collecting repayments from several Cape police officers for alleged, unearned wage increases. Nearly all were also subjected to a 10 percent pay cut and returned to their “appropriate” pay step level.

According to 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 involved officers had agreed to obtain the required credits as part of a pre-employment contract. They did not obtain the credits, however, they 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 charge. The initial claim was dismissed, but the general counsel found reason to move forward with an amended charge.

Following an evidentiary hearing in June, where both parties presented their cases including testimony, the hearing officer released a recommendation.

City labor attorney Nikhil Joshi said his client is pleased that its legal position and actions in enforcing the pre-employment agreements are vindicated.

“Clearly, PERC agreed that the city had the right to correct the overpayments and seek reimbursement accordingly under the circumstances presented,” he wrote in an e-mail.

“Of course, we recognize the reimbursement has not been easy on the officers and wish it didn’t have to come to that, but the city was left with little choice because not taking such actions would have been unfair to the vast majority of officers who worked hard to obtain educational credits, and, thus, who earned their pay increases,” Joshi continued.

As for not being awarded fees and costs, he expressed disappointment.

“We are disappointed that PERC did not affirm the finding that the city was entitled to its reasonable attorney’s fees, but nonetheless are satisfied with the overall decision,” Joshi wrote.

Messages left for union president Kurt Grau and Gene Gibbons, the attorney who represented the union over the matter, were not returned Friday.

In addition to filing the unfair labor practice claim with the state, the union also filed a grievance with the city regarding this issue. The police chief and city manager both rejected the grievance, moving the issue into arbitration.

As of Friday, both parties were awaiting the results of the final order.