Palm Coast’s nearly four-year-old firefighters union did not walk into today’s hearing before the Palm Coast City Council with high hopes. Nor was the union surprised by the outcome.
After two hours of arguments and deliberation, the council, sitting as judge and jury over a contractual dispute between the firefighters and the city administration, voted 4-0 in favor of its city manager’s recommendations to reject union proposals on three issues the two sides could not resolve in negotiations.
It was not surprising to the union, because for most of the past three years, as the city and the firefighters have been negotiating a collective bargaining agreement, the council has been either giving the city manager direction or following his lead on the mater, in an essentially—and legally justifiable—adversary position against the union.
The odd reversal of roles, giving the council authority to be the final arbiter of the very dispute it was a party to, is in state law, and a reflection of Florida’s traditionally weak labor laws. The council is also stocked with members who’ve spent the bulk of their professional life in business or government on management’s side—Mayor Jon Netts, Bill McGuire and Dave Ferguson.
Netts referred to his history of negotiating contracts before saying he was “reasonably confident that the status quo with regards to disciplinary action, grievance, insures fairness to both parties.”
McGuire also telegraphed his intentions just before the vote.
“Isn’t the grievance procedure in and of itself all about just cause?” McGuire said, referring to the central point of contention between the two sides.
“Exactly, and we have that process, and it’s worked,” Landon said.
“We hereby complain about the current process,” Siwica countered, “because these people are here for a reason, that should tell you something.”
Before reaching this point of mpasse, requiring the council’s intervention, the two sides were able to resolve more than three dozen issues before reaching impasse, which the union declared in December. An arbitrator, or magistrate, heard the dispute and made recommendations that, had they been adopted, would have ended the dispute. The union accepted the recommendations (with one minor change). The city rejected them.
The proceedings were similar to a court hearing. Four members of the city council sat at a head table, along with Bill Reischmann, the council’s attorney. (Council member Bill Lewis was absent, as he has been since July, because of illness.) They faced the two disputing parties. On one side, City Manager Jim Landon and his attorney, Jeffrey Mandel. On the other, Kyle Berryhill, the vice president of the firefighters’ union, and the union’s attorney, Richard Siwica. Behind them, in four rows, a full audience was dominated by red-shirted union members.
Each side had a total of 45 minutes, including rebuttals. Mandel went first, followed by Siwica, two lawyers who have faced each other before, and though Mandel said “we could disagree without being disagreeable,” the two attorneys took quick and brief but barely veiled swipes at each other here and there. (Toward the end of the hearing council member Jason DeLorenzo mistakenly referred to Mandel as “Swindel,” a verbal lapse that, conjoining by name the two adversary attorneys, provided the morning’s only laugh.)
At the heart of the dispute is the matter of who disciplines firefighters, and who fires them. Two other issues involve working conditions and rule-making (and how rules are changed, a proposal that, the union concedes, appears in a minority of contracts elsewhere), and how grievances are defined.
The disciplinary matter touches on due process, in the union’s view. The matter is summed up by a brief clause: “just cause.” The union wants those two words in the segment of the contract dealing with discipline and firing. In other words, an employee may be disciplined or fired only for “just cause.” The phrase is routinely a part of collective bargaining agreements elsewhere. But the city opposes the language., leading Siwica, the union’s attorney, to charge, in reference to Landon, that “the chief executive officer is asking this city to be an outlier.”
“To not include this language that appears in firefighter contracts all over the state of Florida,” Siwica said, “what is special about Palm Coast, though I like Palm Coast, but when it comes to treatment of its employees, what is it that justifies it being out of whack?” Siwica went as far as challenging Mandel to show him “a single contract that doesn’t include just cause.” (Mandel did cite a few such contracts without just cause, but conceded that in more than 92 percent of contracts, just cause is included.)
More specifically, the union wants firefighters to have the right to have their disciplinary cases heard by an impartial third party, such as an arbitrator. The city considers that an infringement on its authority, and wants city policy applied exclusively, giving the ultimate say to the city manager, a process in place since at least 2006. Beyond that, employees can take their case to court, though the union says that’s an unnecessarily costly and time-consuming process (to both sides) that would be more easily avoided by having an arbitrator.
In seven or seven and a half years, there’s been no case of heavy-handed or abusive disciplinary actions by the administration, including Landon, the city manager: the union concedes that point. “It works well, there’s absolutely no reason to change it,” Mandel said, asking the council to exclude the entire segment in the proposed contract dealing with discipline and firing. The process is addressed in city policy and has worked well, Mandel said.
“The decisions as they relate to discipline are subject to third-party review, that’s what this is about,” Siwica said, which “simply keeps the employer on its toes if somebody is going to be fired.” He added, “they’re going to be aware that they need not to be sloppy.” There are “horror stories,” Siwica said, but in labor relations, firing somebody is not difficult. “There are plenty of cases where employers have been directed by arbitrators to reinstate employees,” he said, because arbitrators ensure that rules are followed. “The only time the employee prevails is when the employer doesn’t follow its own rules, and the HR people don’t like that,” he said, referring to human resource departments.
“I don’t know why your administration wants to avoid this faster, cheaper process,” Siwica told the council, referring to arbitration. “We would prefer, if there is a dispute, to have it resolved, in a fast, inexpensive, quick way, not in litigation in state and federal court. That’s our preference.”
Mandel wasn’t convinced by the argument, saying courts are the proper end point of such disputes—and that arbitrators are comparatively very expensive, and more expensive, than going other routes.
Next the proposed collective bargaining agreement will be signed by the two sides, incorporating today’s resolution. The city administration won ratification by dint of the council’s vote. But the proposal must still be ratified by the membership of the firefighters’ union. More often than not, unions do ratify in these circumstances, and when they do, the collective bargaining agreement goes into effect. Should that happen in this case, the agreement won’t be in effect for long: it expires in September 2015, and the two sides will be back at the negotiating table. If no contract is agreed by then, the existing contract (assuming it’s ratified) remains in effect.
We’ve survived, we’ve done well, we have a very good workforce,” Mandel insisted, without “just cause,” and the process “has been administered in a fair and equitable manner.”
Landon spoke only briefly toward the end of the arguments, but he made a salient point his own attorney hadn’t. The firefighters have good benefits and competitive pay, he said, having received raises in all but two years of the Great Recession and its subsequent lean years. There were no layoffs and no lessening of benefits. Firefighters did not have anything taken away from them during negotiations, either. “Nothing. Zero,” Landon said, “and we’re just asking for the same consideration. What they’re proposing is to take away management rights.” In sum, he said, the city is asking to “keep our firefighters rights as they are today, and keep our management rights as they are today.”
When Landon was done, Mandel made the surprising proposal that the city would not be opposed to having the “just cause” clause inserted into policy. But not in the collective bargaining agreement. Siwica countered with a proposal of his own: “If you don’t like just cause in the agreement you can take it out” at the next round of negotiations, he said.
Still, between the manager’s brief sum-up and that concession, it was a compelling one-two disarming of the union’s arguments, at least in the eyes of a council looking for arguments on which it could rest its decision.
After the arguments the council opened the floor to public participation. Just one retired firefighter, Larry Ruggieri, spoke. A 2011 retiree, he asked the council to consider why did the fire department unionized to start with, why the utility department just unionized, and why has there been so much turnover in the fire department—about 35 to 40 firefighters in seven years, in a department of 57 people. Not, he said, because working conditions are as good as the city is claiming them to be.