City of Hugo v. State ex rel. Public Employees Relations Bd.

• Decision Date: 06 December 1994
• Docket Number: AFL-CIO,No. 80363,80363
• Citation: 1994 OK 134,886 P.2d 485
• Parties: CITY OF HUGO, Oklahoma, a Municipal Corporation, Appellee, v. The STATE of Oklahoma ex rel. The PUBLIC EMPLOYEES RELATIONS BOARD, and Local 3199, International Association of Firefighters,/CLC, Appellants.
• Court: Oklahoma Supreme Court

Page 485

886 P.2d 485

1994 OK 134

CITY OF HUGO, Oklahoma, a Municipal Corporation, Appellee, v. The STATE of Oklahoma ex rel. The PUBLIC EMPLOYEES RELATIONS BOARD, and Local 3199, International Association of Firefighters, AFL-CIO/CLC, Appellants.

No. 80363.

Supreme Court of Oklahoma.

Dec. 6, 1994.

Certiorari To The Court of Appeals, Division 2; G. Gail Craytor, Trial Judge.

Jerry Tucker (Tucker/firefighter) was fired by the appellee, City of Hugo (Hugo), on grounds of insubordination. The Hugo City Council upheld the discharge. The appellant, Local 3199, International Association of Firefighters, AFL-CIO/CLC (Union), filed an unfair labor practice charge with the appellant, Public Employees Relations Board (PERB). It asserted that Tucker was fired in retaliation for his union activities. The PERB agreed, and it issued a cease and desist order requiring Tucker's reinstatement with back pay and benefits. Hugo appealed the order to the district court. Finding that the order was unsupported by competent evidence, and that the PERB lacked jurisdiction to consider the charge, the trial judge, G. Gail Craytor, reversed. On appeal, the Court of Appeals affirmed in part and reversed in part. It found sufficient evidence to support the finding of an unfair labor practice. However, it held that the PERB lacked authority to order the firefighter's reinstatement with back pay. We find that: 1) a review of the entire record reveals that the finding of an unfair labor practice is supported by substantial evidence; and 2) the authority of the PERB to issue a cease and desist order pursuant to 11 O.S.1991 § 51-104b(C) does not extend to requiring affirmative relief in the form of reinstatement with back pay and benefits.

OPINION OF THE COURT OF APPEALS VACATED; DISTRICT COURT REVERSED; PUBLIC EMPLOYEES RELATIONS BOARD AFFIRMED IN PART, REVERSED IN PART.

Bob Rabon, Hugo, for appellee.

Susan B. Loving, Atty. Gen., Rebecca Rhodes, Asst. Atty. Gen., Oklahoma City, for appellant, Public Employees Relations Bd.

James R. Moore, Louis J. Barlow, Oklahoma City, for appellant, Local 3199, Intern. Ass'n of Firefighters, AFL-CIO/CLC.

KAUGER, Justice:

Two issues are presented: 1) whether the cease and desist order promulgated by the appellant, Public Employees Relations Board (PERB), is supported by substantial evidence; and 2) whether a cease and desist order issued pursuant to 11 O.S.1991 § 51-104b(C)¹ may require affirmative relief in the form of reinstatement with back

pay and benefits. We find that: 1) a review of the entire record reveals that the finding of an unfair labor practice is supported by substantial evidence; and 2) the authority of the PERB to issue a cease and desist order pursuant to 11 O.S.1991 § 51-104b(C) does not extend to requiring affirmative relief in the form of reinstatement with back pay and benefits.²

FACTS

On August 2, 1989, Jerry Tucker (Tucker/firefighter), a nine-year veteran of the Hugo Fire Department and a union organizer, was fired after a termination hearing held before the appellee, City of Hugo (Hugo). The City terminated Tucker for insubordination resulting from his refusal to teach a fire safety class. Prior to his discharge, Tucker had never received job-related discipline. Rather, he had been offered a promotion to Captain. Additionally, he had been named "lead off" man--a position of authority in the Captain's absence.

In September of 1988, Fire Chief Tom Pence (Fire Chief) asked seven Hugo firefighters to become instructors in Level I Fire Safety Instruction Courses offered by OSU Tech. Tucker completed the course. However, one officer refused. Because the certification was a voluntary activity--the courses were not an agency requirement or a part of the job description for Hugo firefighters, the officer was not disciplined. The certification training occurred off-duty, and the firefighters did not receive additional compensation for completion of the course. Certification required that a firefighter actually teach a fire safety class. Preparation for the class took a good deal of time, both on- and off-duty.

Union activities began in December of 1988. Tucker was active in organizing the Union. On January 4, 1989, the Hugo firefighters voted to form Local 3199, International Association of Firefighters, AFL-CIO/CLC (Union/appellant); and Tucker was elected its first president. Prior to union organization, the Fire Chief and other municipal leaders made statements indicating that union formation would put firefighters' jobs in jeopardy. The transcript from the PERB hearing contains testimony that: unionization would result in union members losing jobs; Tucker would be terminated as a result of the dissolution of the ambulance service; the City would go to a volunteer system, and all union firefighters would be out of work; union "trouble makers" could get ready to look for other jobs; and there would be repercussions for Tucker and other union members from the City Council and the Mayor.

The day after Tucker was elected as President of the Union, the Fire Chief eliminated a number of his duties--rural fire collections, hazardous material inspections, residential inspections, and department inventory. On March 6, Tucker finished teaching his first fire safety class. The same day, the Fire Chief demoted him from the "lead-off" position. After a dispute involving Sunday work assignments,³ the Fire Chief told Tucker on July 17 that he would be required to teach ten fire safety courses at two different locations in Hugo in a ten-month period. He would be relieved from that duty for two months and then start the process again.

Before a fire department may offer a fire safety class, it must notify OSU Tech. The notice is called a Form 9, and it can be signed by any certified instructor and the local Fire Chief. It is not necessary that the instructor actually teaching the course sign the Form 9. On July 22, the Assistant Fire Chief (Assistant) demanded that Tucker sign the Form 9 for a class to commence in August. Tucker informed the Assistant that he Tucker signed the Form 9 and returned it to the Fire Chief on July 29th--two days before the date initially set for compliance. However, the Fire Chief refused to sign the form making it impossible for it to be submitted to OSU Tech and for the course to commence on the scheduled August date. Although the City Council was advised of Tucker's compliance at the hearing on August 1st, the Council upheld his termination.

                was waiting for a response from the Mayor on a meeting he had with him concerning the number of fire safety classes he would be required to conduct.  On July 25, the Fire Chief called Tucker into his office for a "corrective interview."   At this meeting, Tucker informed the Fire Chief that he had not heard from the Mayor.  Tucker was informed that he had until July 31st to either sign and mail the Form 9, or he would be severely disciplined.  A compliance review was set for August 3rd.  Although Tucker initially agreed to sign the Form 9, he recanted.  Rather than waiting until July 31st to take additional action against Tucker, the Fire Chief suspended Tucker for insubordination.  Tucker was notified the next day that he would be terminated and that a pre-termination hearing was scheduled before the City Council on August 1st.4
                

On August 4, 1989, the Union filed an unfair labor practice charge with the PERB. It asserted that Tucker was fired in retaliation for his union activities. The PERB agreed finding that Hugo had committed unfair labor practices pursuant to 11 O.S.1991 §§ 51-102(6), (6a)(1),⁵ 51-102(6), (6a)(3),⁶ and 51-102(6), (6a)(4).⁷ The PERB issued a cease and desist order requiring Tucker's reinstatement with back pay and benefits. Hugo appealed the order to the district court. Finding that the order was unsupported by competent evidence and that the PERB lacked jurisdiction to consider the charge, the trial judge reversed. On appeal, the Court of Appeals affirmed in part and reversed in part. It found sufficient evidence to support the finding of an unfair labor practice. However, it held that the PERB lacked authority to order the firefighter's reinstatement with back pay. We granted certiorari on March 4, 1994, to consider the first impression question of whether a cease and desist order issued pursuant to 11 O.S.1991 § 51-104b(C)⁸ affords affirmative relief by reinstatement with back pay and benefits,⁹ and whether the finding of an unfair labor practice is supported by substantial evidence.

I.

A REVIEW OF THE ENTIRE RECORD REVEALS THAT THE FINDING OF AN UNFAIR LABOR PRACTICE IS SUPPORTED BY SUBSTANTIAL EVIDENCE.

Hugo insists that no unfair labor practice was committed. The PERB found Substantial evidence is more than a scintilla of evidence. It possesses something of substance and of relevant consequence that induces conviction and may lead reasonable people to fairly differ on whether it establishes a case.¹² In determining whether an administrative agency's findings and conclusions are supported by substantial evidence, the reviewing court will consider all the evidence including that which fairly detracts from its weight.¹³ However, great weight is accorded the expertise of an administrative agency. On review, a presumption of validity attaches to the exercise of expertise. An appellate court may not substitute its judgment for that of an agency, particularly in the area of expertise which the agency supervises.¹⁴

that the Union established by a preponderance of the evidence that Hugo engaged in unfair labor practices. Appellate courts review the entire record made before an administrative agency acting in its adjudicatory capacity to determine whether the findings and conclusions set forth in the agency order are supported by substantial evidence.¹⁰ Adjudicatory orders will be affirmed if the record contains substantial evidence in support of the facts upon which the decision is based, and...