Denver Firefighters Local No. 858, IAFF, AFL–CIO v. City & Cnty. of Denver

Decision Date16 August 2012
Docket NumberNo. 11CA1770.,11CA1770.
Citation292 P.3d 1101
PartiesDENVER FIREFIGHTERS LOCAL NO. 858, IAFF, AFL–CIO, Plaintiff–Appellee, v. CITY & COUNTY OF DENVER; and Alex J. Martinez, in his official capacity as Manager of Safety for the City & County of Denver, Defendants–Appellants.
CourtColorado Court of Appeals


Buescher, Goldhammer & Kelman, P.C., Thomas B. Buescher, Denver, Colorado, for PlaintiffAppellee.

Douglas J. Friednash, City Attorney, Robert D. Nespor, Assistant City Attorney, Franklin A. Nachman, Assistant City Attorney, Jennifer L. Jacobson, Assistant City Attorney, Denver, Colorado, for DefendantsAppellants.

Opinion by Chief Judge DAVIDSON.

¶ 1 Defendants, the City and County of Denver (the City) and Alex J. Martinez, the Manager of Safety (Manager), appeal from the trial court's order granting a preliminary injunction in favor of plaintiff, Denver Firefighters Local No. 858, IAFF, AFL–CIO. The primary issue on appeal is whether plaintiff has demonstrated a reasonable probability of success on the merits, which requires us to review, as a matter of first impression in Colorado, the trial court's determination that a discipline matrix is a mandatory subject of collective bargaining. We affirm.

I. Background

¶ 2 The Denver firefighters are City employees, subject to the supervision and control of the Manager, who is appointed by the Mayor. See Denver Charter §§ 2.6.1, 2.6.2. In 1971, Denver voters passed an amendment to the City Charter, granting Denver firefighters the right to collectively bargain with the City over certain working conditions. See Denver Charter § 9.7.3.

¶ 3 Plaintiff is the firefighters' exclusive bargaining agent, and the parties have had a collective bargaining agreement every year since the amendment. See Denver Charter § 9.7.4; City & Cnty. of Denver v. Denver Firefighters Local No. 858, 663 P.2d 1032, 1034 (Colo.1983) (Local No. 858). The parties' current collective bargaining agreement (the Agreement) has been in effect since January 1, 2010 and will expire December 31, 2012.

¶ 4 The dispute underlying this appeal arose from defendants' proposed unilateral creation and implementation of a discipline matrix for the Fire Department. As described by the parties, a discipline matrix is a system that lists prohibited conduct and the corresponding disciplinary sanctions to be imposed through a progressive system based on the severity and frequency of an employee's misconduct.

¶ 5 The Fire Department does not have a discipline matrix, although it has a code of conduct and a system for imposing discipline, which has been in place for decades. Under the current disciplinary system, when a firefighter violates the code of conduct, the Fire Chief issues a written report containing the charges, the evidence of and reasons for the charges, and the specific disciplinary action ordered. Denver Charter § 9.4.14. The Manager then reviews the report and may approve, modify, or disapprove the recommended disciplinary action. Id.

¶ 6 Defendants' proposed creation and implementation of a discipline matrix would change the current discipline system. The issue here is whether defendants may do so without first negotiating with plaintiff.

¶ 7 In October 2010, the Manager (then Mary Malatesta, now Alex Martinez) indicated that she would like to form a Discipline Advisory Group (DAG) to create a discipline matrix for the Fire Department. Plaintiff promptly responded, asserting that a disciplinematrix is a mandatory subject of collective bargaining. The Manager did not reply.

¶ 8 In March 2011, after being advised a second time that the Manager intended to create a discipline matrix, plaintiff sent essentially the same response. Again, the Manager did not reply.

¶ 9 In May 2011, plaintiff learned that the DAG had been created and would begin holding meetings. Plaintiff attended the first meeting and, again, asserted that a discipline matrix is a mandatory subject of collective bargaining. Defendants disagreed, telling plaintiff they would continue with the process to create the matrix.

¶ 10 Plaintiff filed this action in the trial court and, as relevant here, requested the issuance of a preliminary injunction. Following a hearing, the trial court granted plaintiff's motion, issuing an order enjoining defendants from implementing a disciplinary matrix for Denver firefighters without first negotiating with plaintiff. The trial court's decision focused on which Charter provision, section 9.4.13 or 9.7.3, prevailed, interpreting these provisions to require the City to collectively bargain over disciplinary matters because (1) disciplinary matters are terms and conditions of employment under section 9.7.3 (“Firefighters shall have the right to bargain collectively ... as to ... working conditions, and all other terms and conditions of employment, except ... organization of the Fire Department and except pensions....”); (2) the absence of a discipline exception in section 9.7.3 was intentional; and (3) the words “set forth” in section 9.4.13 (“The rules governing the conduct of [Fire Department members] shall be set forth as written rules and regulations....”) mean that the City has the right to implement rules of conduct for firefighters, but does not have the right to write or draft them unilaterally.

¶ 11 The court concluded, therefore, that plaintiff had demonstrated a reasonable probability of success in establishing that, pursuant to the Charter and the Agreement, the proposed discipline matrix is a mandatory subject of collective bargaining.

¶ 12 Defendants appeal. Their request for a stay of the injunction pending appeal was denied by the trial court and by a motions division of this court.

II. Preliminary Injunction: Standard of Review

¶ 13 A preliminary injunction is a remedy designed to preserve the status quo and to protect a party's rights pending a trial on the merits. Anderson v. Pursell, 244 P.3d 1188, 1196 (Colo.2010). To grant a preliminary injunction, the moving party must show that (1) it has a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury exists that may be prevented by injunctive relief; (3) there is no plain, speedy, and adequate remedy at law; (4) there is no disservice to the public interest; (5) the balance of equities favors the injunction; and (6) the injunction will preserve the status quo pending a trial on the merits. Rathke v. MacFarlane, 648 P.2d 648, 653–54 (Colo.1982).

¶ 14 It is within the trial court's sound discretion to decide whether to grant or deny a preliminary injunction, and we will not overturn that decision unless it is manifestly arbitrary, unreasonable, or unfair. Cody Park Prop. Owners' Ass'n v. Harder, 251 P.3d 1, 6 (Colo.App.2009). However, where the issues present only legal questions, our review is de novo. Dallman v. Ritter, 225 P.3d 610, 620–21 (Colo.2010); State v. Cash Now Store, Inc., 31 P.3d 161, 164 (Colo.2001).

¶ 15 Here, the first Rathke factor, whether the plaintiff has shown a reasonable probability of success on the merits, presents a question of law. See MDC Holdings, Inc. v. Town of Parker, 223 P.3d 710, 717 (Colo.2010). Therefore, we review the trial court's finding that plaintiff met the first Rathke factor de novo, but, because the remaining factors present questions of fact, we defer to the trial court's determination of them. See Cook v. City & Cnty. of Denver, 68 P.3d 586, 588 (Colo.App.2003).

III. Probability of Success on the Merits: The Proposed Discipline Matrix is a Mandatory Subject of Collective Bargaining

¶ 16 We agree with the trial court's conclusion that the proposed discipline matrix is a mandatory subject of collective bargaining. However, we do so on different reasoning. See Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7, ––– P.3d ––––, 2012 WL 150079.

A. The Charter Determines the Parties' Rights on the Subject of Discipline

¶ 17 Collective bargaining is the process through which employees negotiate exceptions to the government employer's traditional managerial authority to supervise and direct its public employee workforce. See Hogan v. Kokosing Constr. Co., 836 F.Supp.2d 583, 590 (S.D.Ohio 2011) (“ ‘Collective bargaining agreements regulate or restrict the exercise of management functions; they do not oust management from the performance of them.’ ” (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960))); see also First Nat'l Maint. Corp. v. N.L.R.B., 452 U.S. 666, 680–81, 101 S.Ct. 2573, 69 L.Ed.2d 318 (1981) (collective bargaining “is not intended to serve either party's individual interest, but to foster in a neutral manner a system in which the conflict between these interests may be resolved”).

¶ 18 Here, the subject of discipline has not been included in the parties' previous collective bargaining negotiations. And the only mention of disciplinary matters in the Agreement is to exclude them from the Agreement's grievance procedure. Thus, in the absence of a negotiated provision on discipline, and in light of the parties' arguments, we look to the provisions of the Charter to determine the parties' rights.

1. Under the Charter, Discipline is a Subject of Management Authority

Charter section 9.4.13 provides:

The rules governing the conduct of members of the Classified Service in the Fire and Police Departments shall be set forth as written rules and regulations by the Chief of each of the respective departments with the approval of the Manager of Safety.... Any member of the Classified Service shall be subject to reprimand, discharge, reduction in grade, fine and/or suspension for a violation of such rules and regulations.

The section immediately following, 9.4.14, describes the procedure for implementing disciplinary procedures against a firefighter who violates a rule or regulation.

¶ 19 Contrary to the trial court's determination that the words “set forth” in section 9.4.13 limit defen...

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