City of Bethany v. Public Employees Relations Bd. of State of Okl., AFL-CIO

CourtSupreme Court of Oklahoma
Citation904 P.2d 604,1995 OK 99
Docket NumberAFL-CIO,No. 81003,81003
Parties151 L.R.R.M. (BNA) 2138, 1995 OK 99 CITY OF BETHANY, Oklahoma, Appellant, v. The PUBLIC EMPLOYEES RELATIONS BOARD OF the STATE of Oklahoma and International Association of Firefighters,/CLC, Local 2085, Appellees.
Decision Date03 October 1995

Page 604

904 P.2d 604
151 L.R.R.M. (BNA) 2138, 1995 OK 99
CITY OF BETHANY, Oklahoma, Appellant,
Oklahoma and International Association of
Firefighters, AFL-CIO/CLC, Local 2085, Appellees.
No. 81003.
Supreme Court of Oklahoma.
Oct. 3, 1995.

Page 605

An Appeal From the District Court of Oklahoma County; Charles L. Owens, District Judge.

David A. Davis, Oklahoma City, for Appellant.

Richard E. Coulson, James R. Moore, Judith Shifrin, Oklahoma City, for Appellee, International Association of Firefighters.

Susan B. Loving, Attorney General of Oklahoma, James R. Johnson, Assistant Attorney General, Rebecca Rhodes, Assistant Attorney General, Oklahoma City, for Appellee, Public Employees Relations Board.

Diane Pedicord, Sue Ann Nicely, Oklahoma City, for Amicus Curiae, Oklahoma Municipal League, Inc.

KAUGER, Vice Chief Justice.

Two dispositive issues are presented 1: (1) whether the statutory duty to bargain in good faith was violated when the City proposed that certain terms of the collective bargaining agreement (CBA) under negotiation not be subject to grievance arbitration as is required by 11 O.S.Supp.1985 § 51-111; 2 and (2) whether mandatory grievance arbitration is violative of several provisions of the Oklahoma Constitution. We find that § 51-111 permits the parties to negotiate over the exclusion of certain substantive issues from the collective bargaining agreement. It also provides for an alternative regime for managing the procedural aspects of grievance arbitration if the parties fail to reach agreement, as to contract language. However, the statute clearly requires that

Page 607

once terms are included in the CBA, they must be subject to grievance arbitration, and that it is an unfair labor practice to assert at the bargaining table that certain terms of the CBA will be excluded from grievance arbitration. 3 We also find that 11 O.S.Supp.1985 § 51-111, which provides for mandatory grievance arbitration is constitutional.

The facts material to these issues, as found by the PERB, are not disputed on appeal. In March of 1987, the appellee, the International Association of Firefighters, Local 2085 (the Union) and the appellant, the City of Bethany (the City/Bethany), began negotiating for a collective bargaining agreement for the 1987-1988 fiscal year. During the course of negotiations, the City proposed that certain issues would not be subject to arbitration under the new contract. 4 In response to this proposal, the Union, arguing that pursuant to 11 O.S.Supp.1985 § 51-111, of the Fire and Police Arbitration Act (the Act/FPAA), every item of a contract must be arbitrable, 5 declared an impasse on June 10, 1987. 6

In August of 1987, the Union filed an unfair labor practice charge against the City of Bethany with the Public Employees Relations Board (the PERB/Board). After a hearing, the PERB found that § 51-111 does not allow parties to negotiate for the removal of a class of grievances, issues, or penalties from the arbitration process, that the City had committed an unfair labor practice, and that a cease and desist order should issue. 7 The City was ordered to cease and desist from bargaining in bad faith by proposing and insisting upon illegal bargaining proposals.

Page 608

On January 15, 1992, the City of Bethany filed a petition for review of the PERB's decision in District Court challenging both the PERB's determination that it committed an unfair labor practice and the constitutionality of § 51-111. The District Court affirmed the PERB, and upheld the constitutionality of § 51-111. The City appealed.




Although 11 O.S.SUPP.1985 § 51-111 permits different grievance administration procedures, it requires that all disputes over any terms contained in the collective bargaining agreement be subject to final and binding grievance arbitration.

Under the Act, union representatives and municipalities are obligated to meet and negotiate in good faith 8 over issues concerning wages, hours, grievances, working conditions and other terms and conditions of employment. 9 These items are mandatory subjects of bargaining and neither party is compelled to agree to a proposal or required to make a concession regarding such items during the negotiation process. 10

Arbitration is the prime vehicle for resolving a dispute concerning the interpretation of a collective bargaining agreement formed under the FPAA. The legislative proclamation in 11 O.S.1981 § 51-111 ensures arbitration's use by requiring an arbitration clause in all collective bargaining agreements entered into under the Act. The statute commands that any controversies over the interpretation or application of collective bargaining agreements are to have an "immediate and speedy resolution by required mediation." 11

Before addressing the duty to negotiate in good faith as it applies to grievance arbitration 12 we must first ascertain the legislative

Page 609

meaning and purpose of § 51-111. 13 The primary object of statutory construction is to ascertain the legislative intent. That intent is ascertained from the whole act in the light of the general purpose and object. 14 This Court has previously concluded that the statutory language in § 51-111 expresses a clear legislative intent that any disputes arising from the interpretation or application of the binding collective bargaining agreement shall have an immediate and speedy resolution by required arbitration. 15

Applying these rules of statutory construction to § 51-111, we can elucidate the overall meaning of the statute by paraphrasing each of its sentences as follows: (1) negotiated agreements between labor and management constitute the CBA governing fire fighters and police officers for a period of up to one year; (2) all CBAs must include a no-strike clause, in exchange for the right to a resolution of disputed questions; (3) existing work rules and conditions become part of the CBA unless the parties agree to exclude them; (4) every CBA must include a grievance arbitration procedure for the resolution of disputes over the "interpretation or application" of any provision of the CBA; (5) if the parties fail to agree on a negotiated procedure for managing grievances, they may utilize the statutory procedures for selecting impasse arbitrators; and (6) if the statutory procedure is used for selecting grievance arbitrators, the arbitral determination must still be final.

With this outline of the statute in mind, the following principles of legislative policy emerge with respect to grievance arbitration:

(1) The prohibition against strikes by fire fighters and police officers is not contained in the constitution. It occurs only in the statute. The Legislature explicitly balanced the requirement that CBAs contain a no-strike provision with the right to grievance arbitration. 16 Invalidating grievance arbitration would destroy this vital, conscious public policy decision.

(2) "Any" dispute over the "interpretation or application of any provision" of the CBA is subject to grievance arbitration. Neither side can bargain to exclude certain

Page 610

contractual provisions from grievance arbitration.

(3) When the parties cannot agree to a grievance arbitration procedure, they may resort to the statutory procedures for selecting impasse arbitrators and use those procedures for selecting a grievance arbitration panel.

(4) Advisory grievance arbitration decisions are not contemplated by the statute. The statute unequivocally mandates "final" grievance arbitration, whatever procedure is used to select the arbitrators.

The fundamental flaw in the arguments advanced by the City and Amicus on the issues of statutory construction posed by § 51-111 is a confusion of procedure with substance. Central to the City's position is the assertion that the statute means that "the mechanics, procedures, and substance of grievance resolution clauses are proper subjects of collective bargaining." They are correct with respect to "mechanics" and "procedures," but miss the mark on "substance."

This Court has held, in Midwest City v. Harris, 561 P.2d 1357, 1359 (Okla.1977), that virtually identical language in an earlier version of § 51-111 providing an alternative method of selecting grievance arbitrators was procedural and not substantive. We found that in the absence of a required mediation provision in the collective bargaining agreement between police officers and the city, arbitration was required and would be final and binding on both parties. Under § 548.12 [the predecessor to § 51-111], the collective bargaining agreement should contain the procedure for this required mediation. That procedure should be negotiated and placed in the agreement. In the absence of agreed procedure, then the mediation procedure is that contained in the statutory procedures for impasse arbitration. 17 It is the procedures, not the substantive law, of the impasse arbitration procedures of the Act which is used by § 51-111. That section does not adopt that portion of the impasse arbitration procedures which do not require the City to adopt the opinion of the arbitrators. That option relates only to the adoption of the original collective bargaining agreement. Section 51-111 provides that "the arbitration board's determination shall be final." 18


The duty to bargain in good faith is violated when a party insists upon contract terms which would be illegal if incorporated in the collective bargaining agreement.

Once the grievance arbitration statute, § 51-111, is properly understood, the good faith bargaining duties of the parties with respect to its provisions become clear as well. The parties are free to bargain with respect to the "mechanics" and "procedures" of grievance administration....

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