FRATERNAL ORDER OF POLICE, LODGE 108 v. CITY OF ARDMORE

FRATERNAL ORDER OF POLICE, LODGE 108 v. CITY OF ARDMORE
2002 OK 19
44 P.3d 569
73 OBJ 903
Case Number: 95131
Decided: 03/19/2002
Mandate Issued: 04/18/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

FRATERNAL ORDER OF POLICE, LODGE 108, KENNETH BRIDGEMAN, and NATHAN FOUNTAIN, Plaintiffs/Appellants
v.
CITY OF ARDMORE and the PUBLIC EMPLOYEES RELATIONS BOARD, An agency of the State of Oklahoma, Defendants/Appellees

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. 1

¶0 Defendant-city terminated the employment of two police officers during their initial probationary period. The officers filed grievances with the Fraternal Order of Police, Lodge 108 [FOP], but the city refused to arbitrate the grievances because the termination occurred during the affected employees' probationary period. FOP instituted administrative proceedings against the city before the Public Employees Relations Board (PERB) to secure a cease-and-desist order based on the alleged unfair labor practice. The PERB declined to issue the order. FOP appealed from the administrative decision to the District Court, Carter County, Thomas S. Walker, Judge, in accordance with the provisions of the Oklahoma Administrative Procedures Act. The district court sustained the PERB decision, and the Court of Civil Appeals affirmed the nisi prius ruling. On certiorari granted on FOP's petition,

THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE NISI PRIUS DECISION, INSOFAR AS IT IS CONSISTENT WITH TODAY'S PRONOUNCEMENT, IS AFFIRMED.

James R. Moore, Oklahoma City, Oklahoma for Appellants [44 P.3d 570]
Ted J. Pasley, Ardmore, Oklahoma for Appellee City of Ardmore
Gretchen Zumwalt, Asst. Atty. General, Oklahoma City, Oklahoma for Appellee Public Employees Relations Board.

¶1 Two dispositive issues are presented on certiorari: [1] Are probationary police officers to be considered "permanent members" of the police department for invocation of grievance arbitration rights under the terms of the Fire and Police Arbitration Act (FPAA)2? and [2] Does the PERB have statutory authority to determine the membership status of a collective bargaining unit? We answer the first question in the negative and the second in the affirmative.

I
THE ANATOMY OF LITIGATION

¶2 All the facts in this controversy were submitted to the PERB and to the district court by stipulation. FOP and the city entered into a collective bargaining agreement effective 1 July 1997 through 30 June 1998. The agreement contained, in Article II, the following provision:

The City recognizes Lodge #108 of the Fraternal Order of Police as the exclusive bargaining agent for all permanent, full-time, commissioned police officers of the City of Ardmore, excluding:

(a) The Chief of Police.

(b) The Deputy Chief/Administrative Assistant.

(c) Employees who have not successfully completed one (1) year probationary period from initial date of employment, except as provided for by the Oklahoma state law.3

¶4 In May of 1999 FOP brought a complaint before the PERB alleging an unfair labor practice in the city's refusal to arbitrate the officers' grievance.

II
STANDARD OF REVIEW

¶5 This case calls for statutory interpretation and presents two legal questions. Questions of law stand before us for de novo review. In its reexamination of a trial court's legal rulings, an appellate court exercises plenary, independent, and non-deferential authority.

III
PROBATIONARY POLICE OFFICERS ARE NOT PERMANENT MEMBERS OF THE POLICE DEPARTMENT FOR INVOCATION OF GRIEVANCE ARBITRATION RIGHTS UNDER THE PROVISIONS OF THE FIRE AND POLICE ARBITRATION ACT

¶6 In articulating public policy for the Fire and Police Arbitration Act (FPAA), the legislature provides that the FPAA applies to the "permanent members" of a municipal police department.

¶7 The city claims that "permanent," as used in the FPAA, means "not probationary" while FOP insists the adjective means "not temporary." The latter party points to a definition of permanent employment pronounced by this court's 1915 opinion in McKelvy v. Choctaw Cotton Oil Co.

¶9 Also cited by the FOP is the decision by the Court of Civil Appeals in City of Oklahoma City v. Public Employees Relations Bd.

¶10 The mere fact that a probationary police officer may for some purposes be considered a permanent employee of the city (because the employee's appointment has no specific termination date), does not confer on that employee the status of "permanent member" of the police department for invoking the benefit of grievance arbitration rights under the FPAA. We agree with the Court of Civil Appeals that recognition of probationary officers as voting union employees does not ipso facto entitle them to the right of grievance arbitration under the FPAA.

¶11 By the provision of the FPAA that defines the Act's relevant terms, police officers are described as "the permanent paid members of any . . . police department in any municipality."

¶13 When the police pension statute was first enacted in 1977, it included no definition of the term "member."

¶14 When the provisions of a statute assign one meaning to a term, its definition will apply in every other instance in which the same term is found anywhere else in the compilation.

¶15 Today's declaration of legislative intent also finds support in

¶16 Although not dispositive of today's inquiry into legislative intent, we find added support for today's pronouncement in the holdings of other jurisdictions that have addressed the same question. Both in our sister states

IV
THE PUBLIC EMPLOYEES RELATIONS BOARD IS THE ENTITY STATUTORILY AUTHORIZED TO DETERMINE, IN AN INDIVIDUAL PROCEEDING, THE MEMBERSHIP STATUS OF A COLLECTIVE BARGAINING UNIT

¶17 The second issue raised on certiorari is whether the PERB has the authority to determine the membership status of a collective bargaining unit. FOP insists this court has held on two previous occasions that the bargaining unit's membership is strictly defined by statute and cannot be subject to PERB's redetermination.

¶18 The legislature created the PERB to "accomplish the objectives and to perform the duties prescribed by" the FPAA.

¶19 In Stone, the city and the firefighters' union were negotiating a new collective bargaining agreement. The city insisted that certain high-ranking supervisory members of that department be excluded from the bargaining unit. This court held the city's position was not consistent with good-faith negotiation because the legislature specifically included those individuals in the bargaining unit.

¶20 The difference between Stone and the present case is that in order to bargain one out of the unit, one must first be included in that unit. Because probationary police officers are not permanent members of the police department with regard to grievance arbitration rights, it necessarily follows that they also are excluded from the bargaining unit for that purpose. As probationary officers are not pro tanto in the unit, they cannot be bargained out of it. In short, Stone does not apply.

¶21 In Bethany, the firefighters' union and the city were negotiating for renewal of a collective bargaining agreement. The city insisted that certain issues be exempt from arbitration under the new agreement. The union presented its case to the PERB, which issued a cease-and-desist order. This court held the FPAA does not allow the parties to enact a regime in which some aspects of the collective bargaining agreement are exempt from arbitration.

V
SUMMARY

¶23 The probationary period is a vital tool which allows municipal authorities to ensure [44 P.3d 575] only fit individuals serve as police officers. The legislature has recognized a distinction between a probationary police officer and one who is permanent. That distinction withholds from the probationary police officer the benefit of grievance arbitration until such time as one in that position completes the required probationary service. When breathing life into the Fire and Police Arbitration Act, the legislature also created the Public Employees Relations Board and charged that agency with the case-by-case administration of the Act. So long as the legislative mandate remains in force, the Board must continue to exercise its authority (when invoked) to determine for each case which persons make up the unit appropriate for collective bargaining.

¶24 THE OPINION OF THE COURT OF CIVIL APPEALS IS VACATED; THE NISI PRIUS DECISION, INSOFAR AS IT IS CONSISTENT WITH TODAY'S PRONOUNCEMENT, IS AFFIRMED.

¶25 ALL JUSTICES CONCUR.

FOOTNOTES

1 Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

2 11 O.S. 1991 § 51-101 et seq.

3 Findings of Fact, Conclusions of Law, and Final Order, Fraternal Order of Police, Lodge 108 v. City of Ardmore, PERB Case No. 00364 (Jan. 12, 2000), Record at A94.

4 FOP also sought a declaratory judgment. Relying on the PERB's "exclusive jurisdiction" to determine membership of a bargaining unit, the district court dismissed this request. Journal Entry, Fraternal Order of Police, Lodge 108 v. City of Ardmore, Case No. CV-98-508 (Dist. Ct. Carter County, Mar. 3, 1999), Record at A47.

5 Findings of Fact, Conclusions of Law, and Final Order, supra note 3, at A93.

6 75 O.S. Supp. 1991 § 250 et seq. Judicial review of administrative decisions is addressed in §§ 318-323.

7 Journal Entry, Fraternal Order of Police, Lodge 108 v. City of Ardmore, Case No. CV-00-122 (Dist. Ct. Carter County, filed Aug. 20, 2000), Record at 108.

8 Kluver v.Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1083 ("[i]ssues of law are reviewable by a de novo standard and an appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court's legal rulings"); Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991).

9 See City of Hugo v. State ex rel. Pub. Employees Relations Bd., 1994 OK 134, ¶ 10, 886 P.2d 485, 490 (a "presumption of validity" attaches to the decision of an administrative agency, and "[a]n appellate court may not substitute its judgment for that of an agency, particularly in the area of expertise which the agency supervises") (citations omitted); Oral Roberts Univ. v. Oklahoma Tax Comm'n, 1985 OK 97, ¶ 9, 714 P.2d 1013, 1015 (when an ambiguous statute has been construed by an administrative agency and uniformly applied for a number of years, the agency's construction should not normally be disturbed) (citations omitted).

10 The terms of 11 O.S. 1991 § 51-101(A) provide:

The protection of the public health, safety and welfare demands that the permanent members of any paid fire department or police department in any municipality not be accorded the right to strike or engage in any work stoppage or slowdown. This necessary prohibition does not, however, require the denial to such employees of other well-recognized rights of labor such as the right to organize, to be represented by a collective bargaining representative of their choice and the right to bargain collectively concerning wages, hours and other terms and conditions of employment; and such employees shall also have the right to refrain from any and all such activities. (emphasis added).

The pertinent terms of 11 O.S. 1991 § 51-101(B) state: "It is declared to be the public policy of this state to accord to the permanent members of any paid fire department or police department in any municipality all of the rights of labor, other than the right to strike or to engage in any work stoppage or slowdown." (emphasis added).

11 McKelvy v. Choctaw Cotton Oil Co., 1915 OK 649, 152 P. 414.

12 Id. at 415.

13 Id.

14 Id.

15 1997 OK CIV APP 34, 942 P.2d 244.

16 Id., ¶1, at 245.

17 Id., ¶4, at 246.

18 11 O.S. 1991 § 50-102.1.

19 Id.

20 11 O.S. 1991 § 50-101 et seq.

21 The terms of 11 O.S. 1991 § 50-101.6 provide:

"Officer" means any duly appointed and sworn full-time officer of the regular police department of a municipality whose duties are to preserve the public peace, protect life and property, prevent crime, serve warrants, enforce all laws and municipal ordinances of this state, and any political subdivision thereof, and who is authorized to bear arms in the execution of such duties.

22 11 O.S. Supp. 1977 § 50-101.

23 11 O.S. Supp. 1980 50-101.7.

24 11 O.S. Supp. 1995 § 50-101.7.

25 Assistant Chief of Police Beene testified on behalf of the City of Ardmore. Transcript of Hearing Before the PERB, Fraternal Order of Police, Lodge 108, PERB Case No. 00364 (Sept. 17, 1999), Record A, app. A at 12.

26 The terms of 25 O.S. 1991 § 2 provide "[w]henever the meaning of a word or phrase is defined in any statute, such definition is applicable to the same word or phrase wherever it occurs, except where a contrary intention plainly appears." (emphasis added).

27 The relevant text of 47 O.S. 1991 § 2-105(b) provides: "Patrolmen provided for in this section shall be required to serve a probationary period of twelve (12) months. . . . Retention in the service after expiration of the probationary period shall entitle such employee to be classified as a permanent employee."

28 Id.

29 See Ross v. Washington State Dep't of Soc. and Health Servs., 594 P.2d 1386, 1390 (Wash. Ct. App. 1979) ("[t]he purpose of probationary employment is to provide a trial period of employment during which the employer may observe the performance of the probationary employee before conferring the rights of permanent status"); Smith v. Pima County Law Enforcement Council, 548 P.2d 1151, 1154 (Ariz. 1976) (there is a clear legislative distinction between probationary law enforcement officers and permanent law enforcement officers); State ex rel. Smith v. City of Margate, 155 So. 2d 165, 166 (Fla. Dist. Ct. App. 1963) (it is "obvious[]" that "until fulfillment of the [probationary] period . . . the employee does not acquire the benefits of permanent employment").

30 In Booher v. United States Postal Serv., 843 F.2d 943, 944 (6th Cir. 1988), the court held there was no denial of due process in the termination of a probationary employee because such employee has no property interest in maintaining his position. The court stated: "Probationary status is nothing new; it is agreed that management must retain great flexibility in determining that a probationary employee ought not to be granted permanent status." Id. at 945 (quoting Kotarski v. Cooper, 799 F.2d 1342 (9th Cir. 1986)). See also United States Postal Serv. v. American Postal Workers Union, 204 F.3d 523, 528 (4th Cir. 2000) (termination of probationary employee is not subject to arbitration where the collective bargaining agreement specifically withholds grievance rights from such employees).

31 11 O.S. Supp. 2000 § 51-104.B.

32 11 O.S. 1991 § 51-103.D.

33 1984 OK 76, 690 P.2d 459.

34 1995 OK 99, 904 P.2d 604.

35 Stone, supra note 33, ¶15, at 462.

36 Bethany, supra note 34, ¶5, at 608.

37 Id., ¶ 17, at 610.