City of Tulsa v. State ex rel. Public Employees Realtions Bd.
| Decision Date | 22 September 1998 |
| Docket Number | A,No. 523,No. 89422,523,89422 |
| Citation | 967 P.2d 1214,1998 OK 92 |
| Parties | 161 L.R.R.M. (BNA) 2364, 1998 OK 92 CITY OF TULSA, Oklahoma, a home rule charter municipal corporation, Appellant, v. STATE of Oklahoma, ex rel. THE PUBLIC EMPLOYEES RELATIONS BOARD, and International Brotherhood of Teamsters, Tulsa Localppellees, |
| Court | Oklahoma Supreme Court |
Appeal from the District Court of Tulsa County, State of Oklahoma; Honorable David L. Peterson, Trial Judge.
¶0 The trial court affirmed a decision of the Oklahoma Public Employees Relations Board (Board) ruling City of Tulsa (City) airport safety officers (ASOs) are "police officers" covered by the Oklahoma Fire and Police Arbitration Act (FPAA), 11 O.S.1991, § 51-101 et seq., as amended and ordering an election for the ASOs to choose the International Brotherhood of Teamsters, Tulsa Local No. 523, as their bargaining agent. Held: Board had no authority to order a bargaining agent election under the FPAA because the ASOs are not "police officers" covered by the FPAA.
TRIAL COURT JUDGMENT REVERSED; DECISION OF PUBLIC EMPLOYEES RELATIONS BOARD REVERSED.
David L. Pauling, City Attorney; William M. Northcutt and Martha Rupp Carter, Deputy City Attorneys; Ellen Hinchee, Assistant City Attorney; and Robert H. Garner, Airports Attorney, Tulsa, for Appellant.
W.A. Drew Edmondson, Attorney General of Oklahoma and James Robert Johnson, Assistant Attorney General, Oklahoma City, Oklahoma for Appellee, Public Employees Relations Board.
¶1 This case presents the issue of whether appellee, the Oklahoma Public Employees Relations Board (Board) was correct in ruling airport safety officers (ASOs) employed by appellant, City of Tulsa (City) are "police officers" covered by the Oklahoma Fire and Police Arbitration Act (FPAA), 11 O.S.1991, § 51-101 et seq., as amended 1 and in ordering an election for the ASOs to choose appellee, International Brotherhood of Teamsters, Tulsa Local No. 523 (Union) as their bargaining agent for FPAA purposes. We hold the Board erred as a matter of law. Although the ASOs are certified pursuant to 70 O.S.Supp.1993, § 3311 as peace/police officers by the Council on Law Enforcement Education and Training (CLEET) and their duties, within the confines of City airport, include law enforcement functions--among other responsibilities--the definition of "police officer" for FPAA purposes requires such officers be duly appointed and sworn full-time officers of the regular police department of a municipality. ASOs are not employees of City's regular police department, i.e. the Tulsa Police Department (TPD). They are City employees who work for, and are controlled and supervised by, personnel of the Tulsa Airport Authority. Therefore, we reverse its decision and the trial court judgment affirming it.
PART I. FACTS, PROCEDURAL HISTORY AND POSITIONS OF PARTIES.
¶2 Initially passed in 1971 2 the FPAA's policy is to give permanent members of any paid fire or police department in any municipality covered by the Act's provisions all the rights of labor, except the right to strike. § 51-101(B). The strike prohibition is deemed necessary to protect public health, safety and welfare. § 51-101(A) & (B). 3 Specifically, the FPAA grants municipal firefighters and police officers within its coverage the "right to bargain collectively with their municipal employer and to be represented by a bargaining agent in such collective bargaining with respect to wages, salaries, hours, rates of pay, grievances, working conditions and all other terms and conditions of employment." § 51-103(A). The Board is authorized to promulgate rules to carry out the FPAA's provisions [11 O.S.Supp.1995, § 51-104(D)] and is the administrative agency that oversees and certifies the results of any election held for police or firefighters covered therein electing their bargaining representative. § 51-103. This case concerns the desire of City ASOs to elect Union as their FPAA bargaining agent and involves answering the question--are ASOs "police officers" within FPAA coverage? Although numerous cases have been before this Court implicating one or more of the FPAA's provisions, we have never been presented with this precise question. 4
¶3 In May 1996 Union filed a certification petition with the Board claiming a substantial number of the ASOs desired Union's representation for purposes of collective bargaining and that it sought certification as their bargaining agent. The petition alleged the bargaining unit consisted of twenty (20) employees, referred to as "airport police officers". City opposed certification and a hearing on the matter was held before the Board in August 1996.
¶4 One issue raised by City in opposition to the petition--which it continues to raise on appeal--is the Board had no authority over Union's petition because ASOs do not fit the FPAA definition of "police officers". The definition, found at § 51-102(1), includes by reference the definition set out in the Oklahoma Police Pension and Retirement System Act (OPPRSA), 11 O.S.1991, § 50-101 et seq., as amended. Section 51-102(1) states in relevant part:
As used in this article, unless the context requires a different interpretation:
1. "[P]olice officers" shall mean the permanent paid members of any ... police department in any municipality within the State of Oklahoma but shall not include the chief of police and an administrative assistant.... "Police officers" as used herein shall be those persons as defined in Section 50-101 of this title.
11 O.S.Supp.1996, § 50-101(6) of the OPPRSA defines officer as follows:
"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;
¶5 City's position has two bases. One, ASOs do not fit within the plain and unambiguous definition contained in § 50-101(6), which requires employment by the regular police department of the municipality, because they are not TPD employees, but, instead, are City employees, who work for, and are controlled and supervised by, personnel of the Tulsa Airport Authority. 5 Two, ASOs fall outside the definition as only part of their duties are law enforcement related--hence, they are not "full-time officers". 6
¶6 Union and the Board, although agreeing ASOs are not employees of the TPD, argue they fall within the "police officer" definition, asserting, in essence, the Legislature intended the FPAA to apply to all municipal employees who are authorized to and, in fact, do carry out the law enforcement duties spelled out in § 50-101(6) of the OPPRSA. They assert the ASOs meet this "functional" test because they are CLEET certified as peace/police officers, whose duties, within the confines of the City airport, include all those law enforcement functions set out in § 50-101(6) and they are authorized to and, in fact, do bear arms in the execution of those duties. Basically, their position is the ASOs--as a group--are a separate City police department from the TPD entitled to FPAA coverage. Both also essentially posit the phrase "duly appointed and sworn full-time officer of the regular police department of a municipality" (emphasis added) is an
attempt by the Legislature to distinguish between "regular" police officers employed by a municipality and "reserve" municipal police officers, who when so employed by a municipality, also have authority to carry out all the law enforcement duties specified in § 50-101(6), so that "regular" officers are covered by the FPAA and "reserve" officers are not. 7
¶7 City and Union stipulated to certain facts before the Board. In effect, the stipulations are: as of June 10, 1996 there were twenty-one (21) ASOs; the ASOs are employees of City; City is a municipal corporation organized and existing under the laws of the State of Oklahoma; ASOs' duties include responding to airport security checkpoints 8 and Federal Aviation Administration regulations require that airport employees whose duties include response to security checkpoints, must have the power of arrest and authority to carry a firearm; ASOs are CLEET certified; and ASOs are not employees of or sworn members of the TPD.
¶8 The bulk of the factual dispute at the hearing concerned the ASOs' duties-City trying to show only a minimal part of their duties involved law enforcement activities and Union attempting to prove most of the duties were law enforcement related. In such regard, competent evidence shows the ASO position was created in January 1994 by an Executive Order of City's Mayor. Essentially, the ASO position was intended to, and did, combine what formerly had been the separate positions of community service officer (CSO) and airport operation officer (AOO). CSOs were City employees working for the TPD as lower-level law enforcement officers than entry level TPD police officers. The CSOs performed mainly building and airport security. They were CLEET certified, but did not meet the educational requirements of the TPD for entry level police officer. AOOs, in contrast, were civilian employees working for the Tulsa Airport Authority in its Operations Division. The position involved many duties concerning airport safety, including airfield snow removal, collection of aircraft landing fees, perimeter inspections of airport outer fence, runway, taxiway and ramp inspections, monitoring weather conditions and response duties in aircraft emergencies.
¶9 The combined ASO position primarily performs the duties of the TPD CSO and the prior civilian AOO, i.e. both law enforcement and non-law...
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