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2010 OK CIV APP 116
Case Number: 107463; Consol. w/107469
Decided: 06/29/2010
Mandate Issued: 10/22/2010

CHRIS COOK, RICHARD BERCHER, TONY NEWSOM AND DERICK PICKARD, individually, and all other similarly situated police officers, Plaintiffs/Appellants/Counter-Appellees,
City of Edmond, Defendant/Appellee/Counter-Appellant.




James R. Moore, Sue Wycoff, MOORE & VERNIER, P.C., Oklahoma City, Oklahoma, for Appellants
Andrew W. Lester, George S. Freedman, LESTER, LOVING & DAVIES, P.C., Edmond, Oklahoma, for Appellee


¶1 City of Edmond (City) appeals the trial court's July 28, 2009, final judgment which granted Police Officers' Chris Cook, Richard Bercher, Tony Newsom, and Derick Pickard (collectively "Officers") Title 40 O.S.2001 and Supp. 2005, § 165.1 et seq. wage claim. Officers also appeal, asserting the trial court applied the incorrect statute of limitation. Based upon our review of the facts and applicable law, we reverse and remand with directions.1


¶2 Officers filed a petition on August 11, 2003, asserting a claim for back wages pursuant to Title

¶3 On June 6, 2005, Officers filed a motion for partial summary judgment on the issue of liability. Officers asserted the CBA required officers to work 42.5 hours a week. Officers contended that in addition to an 8 hour work shift, all officers are required to report to work 15 minutes before the shift starts and to remain on-duty and be available for dispatch for 15 minutes after the shift ends. Although officers are required to be at work and on-duty for 15 minutes before and after the shift, thus working 8.5 hours a day and 42.5 hours a week, supervisors only enter 8 hours a day and 40 hours a week on time sheets. Thus, Officers are not compensated for the additional 2.5 hours they work.

¶4 City responded and filed its own motion for summary judgment on August 31, 2005, which it supplemented on September 2, 2005, and April 7, 2006. City asserted it pays Officers according to the CBA's terms, which sets forth a "standard work week," not the "hours of work" for each Officer. City contended §11.2 of the CBA was established to set a threshold for overtime, not a promise to pay additional wages, and was in response to Garcia v. San Antonio Metro. Transit Auth.,

¶5 City further cited the Evans Grievance, asserting the Fraternal Order of Police had agreed in 1993 the CBA did not require payment of 42.5 hours of wages. In 1993, then Fraternal Order of Police President Joe Evans filed a grievance asserting he was not compensated for the 15 minute pre- and post-shift time. The CBA in 1992-1993 had a 40 hour work week and had eliminated provisions requiring the City to provide meal and break periods.

¶6 On September 15, 2005, Officers filed an application to hold the motions for summary judgment in abeyance pending arbitration. Officers asserted their bargaining agent, the Fraternal Order of Police Lodge 136 (FOP), had filed a contract grievance.

¶7 The trial court ultimately granted Officer's motion, holding the summary judgment motions in abeyance pending arbitration. On November 16, 2005, City filed an application to assume original jurisdiction and petition for writ of prohibition with the Oklahoma Supreme Court, requesting the Court order the trial court to proceed with the litigation pending below. The Supreme Court agreed and issued the writ, directing the trial court to hear and determine the parties' cross motions for summary judgment without undue delay.

¶8 On July 7, 2006, later memorialized by order filed on December 7, 2006, the trial court issued a letter denying City's motion for summary judgment and granting Officer's motion for partial summary judgment, finding the CBA clearly states the regular work week is 42.5 hours. However, the court found City does not pay Officers for the additional 15 minutes pre- and post-shifts per day required to be on duty in violation of

¶9 Also on July 7, 2006, the arbitrator issued his ruling, denying the grievance. The arbitrator noted that nothing in the CBA states there is an 8.5 hour work day or a 42.5 hour work week minimum pay guarantee. Rather, "Article 11.2's only specific time reference is 42.5 hours, Saturday to Saturday, in a clause that does not mention pay."

¶10 The arbitrator further found the Evans Grievance compelling. When the Evans Grievance arose, FOP understood that before the 1992-1993 Article 11 contract changes, the 15 minutes pre- and post-shift periods were included in the work day and were not compensated; the settlement returned to the pre 1992-1993 language with FOP assurance the dispute was over; and 1993-1994 negotiations retained the settlement language that survives today.

¶11 Finally, the arbitrator stated it was "unnecessary to say if the pre and post 15 minute periods are compensable by themselves or if meal/break times within the shift are paid or deducible. However characterized, the current pay calculation results from an express and established bargain. The Board is obliged to enforce it."

¶12 Thereafter, City filed a motion to reconsider or in the alternative a motion to certify an interlocutory appeal, asserting the arbitrator was vested with preclusive authority to interpret the CBA and because the CBA formed the only basis for the court's finding of unpaid work, the court's decision must be reconsidered. The trial court denied the motion on December 7, 2006.

¶13 On November 29, 2007, City filed a second motion for summary judgment, asserting the trial court lacked subject matter jurisdiction because Officers failed to comply with the Governmental Tort Claims Act (GTCA),

¶14 On January 7, 2008, Officers filed a second motion for partial summary judgment, requesting prejudgment interest. On January 25, 2008, City filed a motion asserting the statute of limitations was 3 years. The trial court ultimately ruled Officers were entitled to prejudgment interest and the proper statute of limitations was 3 years.

¶15 In June of 2008, City filed an offer of proof. Officers objected, asserting it was inappropriate because there had never been a trial, inter alia. Officers ultimately withdrew their objection. The parties entered into stipulations and final judgment was entered on July 28, 2009. Officers were subsequently awarded an attorney's fee. Both parties appealed and appeals were consolidated under surviving appeal No. 107,463.


¶16 Summary judgment is used to reach a final judgment where there is no dispute as to any material fact, and where one party is entitled to judgment as a matter of law. Indiana Nat'l Bank v. Department of Human Servs.,


¶17 Before addressing the merits of either parties' propositions of error on appeal, this Court must first address Officers' assertion City may only appeal the denial of its' motion to reconsider because City did not file the motion within 10 days of the order granting Officers' motion for partial summary judgment on the issue of liability. Officers further assert City waived or abandoned appeal of the denial of its motion to reconsider by failing to address it in its brief on appeal.

¶18 City disagrees, asserting the summary judgment ruling was an intermediate, non-final order which remained under the trial court's plenary control until the controversy ended. City notes the issue of damages remained before the court.

¶19 The July 7, 2006, letter ruling granting Officers' motion for partial summary judgment, later memorialized by order on December 7, 2006, was addressed solely to the issue of liability. Issues remained pending in the suit. Thus, the decision did not rise to the level of a judgment pursuant to

¶20 The parties assert several propositions of error on appeal. However, one proposition of error has merit and warrants reversal of the trial court's July 28, 2009, final judgment.

¶21 City contends the trial court did not have the authority to ignore and reject the arbitrator's decision and supplant its own interpretation of the CBA. Thus, the final judgment must be reversed.

¶22 Officers disagree, and contend this case is a claim for unpaid wages authorized by

¶23 The Fire and Police Arbitration Act (FPAA),

" [t]he Fire and Police Arbitration Act,

[F]or quick resolution of these disputes, the role of the district court is limited to determining whether the dispute is one that is covered by the contract. In the presence of any dispute regarding the interpretation of a collective bargaining agreement, the first remedy lies with the contractually-agreed-upon arbitration, and the district court has no authority to disturb the function of arbitration.

City of Warr Acres v. The Int

¶24 The main purpose of arbitration is to prevent court intrusion into the merits of disputes when there is an agreement to arbitrate disputes concerning contract interpretation. City of Warr Acres,

¶25 City and FOP are parties to a CBA. Officers are not a party to the CBA but are beneficiaries of its terms. City of Warr Acres, 2002 OK 124, at ¶ 2, 64 P.3d at 1120. Article 10 sets forth the grievance procedure and incorporates the FPAA's arbitration requirements. Article 10, Section 10.2 provides a grievance is any dispute on any issue over the "meaning, interpretation, application or alleged violation of the terms and provisions" or "alleged violation of policies and procedures of the Edmond Police Department." A grievance is subject to the grievance procedure outlined in Article 10, including binding arbitration. Either the FOP or any officer may file a grievance.

¶26 In the present case, the trial court was presented with a Title 40 wage claim which required the court to interpret and apply the CBA. In granting Officers' motion for partial summary judgment, the court clearly interpreted and applied provisions of the CBA, ultimately rendering a decision finding City liable for the additional wages. Pursuant to the CBA and the FPAA, the appropriate remedy lies first with the contractually agreed upon arbitration. Although the trial court has the authority to determine a Title 40 wage claim and whether a dispute is arbitrable, it does not have the authority to determine the "meaning, interpretation, application or alleged violation of the terms and provisions" of the parties' CBA when the parties have contractually agreed otherwise. The fact Officers filed a claim pursuant to Title 40 does not alter this finding. Any doubt should be resolved in favor of coverage. The trial court did not have authority to usurp the function of arbitration.

¶27 Accordingly, once the trial court determined Officers' Title 40 wage claim involved an interpretation and application of the CBA, the trial court had a duty to submit the dispute to binding arbitration. It erred in failing to do so. The trial court did, however, correctly stay the proceedings upon learning of FOP's grievance filing and the pending arbitration.

¶28 The trial court further erred in failing to grant City's motion to reconsider the court's interlocutory order granting Officer's motion for partial summary judgment. A grievance was properly filed by FOP, as Officers' bargaining agent, pursuant to the CBA. FOP did not seek a decision on Officers' Title 40 claim. After considering the CBA and evidentiary material presented by the FOP and City, the arbitrator denied the grievance. Neither party appealed the arbitrator's decision. The decision was therefore final and binding on the parties, including Officers. Upon presentation of the arbitrator's decision to the trial court, the court was obligated to revisit its interlocutory summary adjudication and reconsider whether Officers' Title 40 wage claim was viable based on the arbitrator's interpretation of the CBA.


¶29 Accordingly, the trial court's July 28, 2009, final judgment is reversed and the matter remanded to the trial court for further proceedings. The trial court is directed to determine whether Officers are entitled to wages pursuant to Title 40 consistent with the arbitrator's interpretation of the CBA. Because of our resolution of this issue, we need not address the remaining issues on appeal. However, the parties are free to reassert the issues on remand.


GABBARD, P.J., concurs; RAPP, J., not participating.