The Palm Coast City Council as Labor Tribunal: Firefighters Union and Administration Face Off
FlaglerLive | August 28, 2014
Since an overwhelming majority of Palm Coast’s firefighters voted to unionize three and half years ago, they have been working without a contract. Negotiations between the union and the city over a collective bargaining agreement have been contentious. Last December the union declared an impasse, requiring the intervention of a special magistrate.
The magistrate—George Larney, a labor arbitrator and mediator based in Arizona—following a March hearing recommended compromise language on three issues in contention, including a key issue of due process. The city rejected the recommendations, sending the matter to the next step: a hearing before the Palm Coast City Council.
On Friday, the council will meet in special session, sitting essentially as judge and jury. The council will hear 45-minute presentations by each side, ask questions, then render a verdict in the form of a resolution, assuming it has a majority to do so: Bill Lewis, a council member, has not attended a council meeting since July because of illness, and 2-2 ties are the equivalent of a failed motion. The council could have its own impasse on the issue as a result, although that’s very unlikely.
The City Council’s Two Hats
The council’s decision is final and binding, thus naturally giving the city administration’s position greater weight and favor than the union’s position. The council—and this council especially—rarely goes against its city manager’s recommendations. And until a few months ago, the council would actually meet in secret–it’s allowed under Florida law, when local governments devise strategy in collective bargaining negotiations–with City Manager Jim Landon to craft or land support to the administration’s position. In other words, the same council that had been in an adversarial position until a few months ago (those secret meetings had to stop, by law, once the city rejected the special magistrate’s recommendations) is now in a position to arbitrate, ostensibly as an impartial decision-making body. City Manager Jim Landon will be presenting the city’s case to the council. Historically, local governments in that position overwhelmingly, and not surprisingly, side with their administration, against the union.
“We are hopeful that the city council will realize that we’re not asking for anything that’s unreasonable and we hope they’ll side with us,” Jason Laughren, a lieutenant with the fire department and the president of the local union, said in an interview. “In our contract we really haven’t asked for anything that we really don’t already have, we just want to have it down on paper.” The one exception is a requirement that on disciplinary issues, firefighters have the right to have their case heard by an impartial arbitrator, rather than decided by the city manager. But that due process issue is at the heart of the dispute.
The dispute has never interfered with the fire department’s responsibilities in the city. The dispute between the city and the union is internal and has no direct bearing on day to day operations. But it is a reflection of working conditions and such amorphous factors as morale and perceptions of job security: some 37 firefighters have left the department in the last seven years, huge turnover for such a small department, and a reflection of the unsettled atmosphere within.
The resolution of the dispute may also serve as a blueprint for the city’s next union issue. Just last month, the city’s blue collar workers in the utilities department voted to unionize, a vote that will affect more than 100 employees.
The Issues in Contention
When the union and the city were first at impasse, they had some 41 issues left unresolved. But by a March hearing, they had whittled down those conflicts to just three: grievance procedures, disciplinary procedures, and the changeability of privileges, working standards or working conditions. In each case, the matters come down to the union seeking a measure of protection for workers from what it perceives as potentially arbitrary or unpredictable decisions from management, while the city seeks to preserve a level of authority and discipline it considers essential to its responsibilities.
In one of the matters in contention, the union is seeking to ensure that “all standards, privileges and working conditions” firefighters currently enjoy—and aren’t part of the contract—are preserved “unless changed by mutual written consent.” It looks like an innocuous position, but to the city, “this is a waiver of the city’s rights” that the union “cannot legally advance through the impasse resolution process.” The union’s language, the city claims in its response in the special magistrate’s report, “would eviscerate” management rights by granting the union a veto even on what the city sees as matters that aren’t under the umbrella of collective bargaining.
The union, for its part, submitted examples of other city fire departments where this matter of “prevailing rights” is in effect, and argued that because this would be the first agreement between the union and the city, “it is important that terms and conditions of employment continue in effect. Absent inclusion of all current practices in an agreement—which concededly is often difficult to achieve in an initial contract [–] subjects them to unilateral change, and being lost forever.”
Put more simply, the city wants to preserve its authority to make rules, as management usually does, while the union wants to have a say in whether or how those rules are made, so the city doesn’t use rule-making as an end-run around the contract.
The special magistrate proposed compromise language that split the difference down the middle: “All benefits and working conditions enjoyed by the employees at the time this Agreement takes effect which are not included in this Agreement, whether in writing or not in writing but which are known to exist and which do not infringe upon management rights, shall be presumed to be reasonable and proper, and shall not be changed arbitrarily or capriciously.”
Larney, the magistrate, then nudged both sides toward each other, saying the new language “meets the mutual needs of the Parties as reflected by their respective positions on the issue and by the very fact of their excellent relationship as evidenced by their impressive effort to reach tentative agreement on huge number of issues in negotiating this initial collective bargaining agreement, whittling down the impasse issues to just three by the time this arbitration hearing was held.”
A Matter of Due Process
On another issue, however—discipline—the magistrate sided squarely with the union. That issue is key in at least one regard: it highlights a distance not only between the administration and its employees, but between how Palm Coast sees its rights as an employer, and how those rights are balanced with employee rights elsewhere.
The union agrees to the disciplining or the firing of an employee “for just and proper cause,” and states in the agreement that the city should recognize “the principles of progressive discipline.”
The city rejected both clauses. It does not want discipline issues included in the contract, deferring instead to city policy—which, in effect, incorporates language of progressive discipline, which means that an infraction is addressed first with a verbal warning, then a written one, then a suspension, a demotion and, eventually, termination. But the policy also gives the fire chief the authority to change or revoke the rules “as may be necessary,” as long as the changes are consistent with the city’s personnel policies.
To the union, that would “leave disciplined employees to the whims of the city manager,” and a reflection of the city’s refusal to have disciplinary matters reviewed impartially. The union gave examples of nice fire departments where its proposed language is in effect.
Kyle Berryhill, a firefighter and the vice president of the union, noted that firefighting involves inherent risks in the line of duty, and in those risks, “there’s a potential for getting in trouble with the employer.” That’s why the provision for an impartial set of eyes in deciding disciplinary issues. Such a process, Berryhill and other union officials say, would actually save the city money and time, since, without it, firefighters would have no option but to push disciplinary issues to litigation.
The city concedes that “currently, the city has an internal appeals process that ends with a final decision made by the city manager,” but that the process is of long date and that the union hasn’t produced “a single incident” where the process didn’t prove effective.
The union, in a backdoor way of endorsing current management practices, is concerned that the current administration may be replaced by a less effective one. “However,” the city’s response goes, “this concern is unwarranted. The [collective bargaining agreement] expires September 30, 2015 and the city manager has no plans on leaving before that date.” Even if he did, negotiations of a new agreement would take care of the issue. “It simply makes no sense to throw out a process that is working just because of the mere possibility that it might not work in the indiscernible future,” the city states.
The special magistrate rejected the city’s position in the strongest language of its three proposals.
“The Special Magistrate finds the City’s argument in its entirety to be unpersuasive,” Larney wrote. “The very fact that the majority of eligible voters voted in favor of forming a union is a significant indicator that those employees comprising the certified bargaining unit were eager to seek changes in the existing employer-employee relationship.” The magistrate accepted the city’s description of a working relationship, but said that “there is no guarantee this will always be the case irrespective of whether the current city manager stays in his position or leaves.”
For all that, it is extremely rare for a local government to reject a “just clause” provision.
“The employer’s failure to agree to a just clause provision is extraordinary,” Richard Siwica, the Orlando attorney representing the union, said this morning, and it shows a city “out of step with basic labor relations in the western world.”
The third matter in contention deals with grievances, in which case the magistrate accepted the city’s definition of what a grievance is, though it broadened the definition somewhat, in favor of the union. Either way, the city rejected the final finding, along with the recommendations on the two other matters.
On Friday, it’ll be up to the men of the city council to arbitrate.
History and Likely Outcomes
The fire department last year celebrated its 40th anniversary: it started with 36 volunteers and a fire engine donated by ITT, the corporation that built the original Palm Coast. The first firehouse was a maintenance shed at a golf course. That’s not to suggest the nascent development was without broader fire protection: it was part of Flagler County, and what was then called the Palm Coast Service District had police and fire protection from the county’s public safety agencies.
Today’s fire department has 57 professional firefighters and 50 volunteers under the direction of Fire Chief Mike Beadle. Palm Coast has five fire stations. All but five of the professional firefighters are of union rank. The firefighters unionized in 2011 when 80 percent of firefighters (43 of 54) voted to unionize and form Local 4807 of the International Association of Fire Fighters (IAFF). The city initially tried to exclude the department’s 15 lieutenants from union ranks but lost that fight.
The city and the firefighters’ bargaining unit have been negotiating a collective bargaining agreement since.
Following the council’s vote on Friday, the resulting agreement is signed by both sides, but must then go to the union membership for a ratification vote, sometime in the next few weeks. If the agreement is ratified, the collective bargaining agreement is in effect, at least for a few weeks. In most such cases, even when the local government adopts the administration’s position, unions ratify because they are also ratifying a slew of other points to which both sides agree. If the membership does not ratify, then the status quo prevails and further collective bargaining negotiations resume–with an exception: those three points that were in contention, and that the council would have presumably adopted from the administration’s perspective, are “imposed” on the operations of the fire department .
An irony: should the membership ratify the agreement, it will barely be in place for a few weeks. It expires on Oct. 1, because the city and the union have been negotiating it for three years already. So both sides will be back at the table very soon to negotiate a new agreement.
Friday’s special hearing before the council is open to the public. It is scheduled for 10 a.m. at the council’s conference room at city offices, at City Marketplace.