August 31st, 2014
TO: All Bargaining Unit Members
FROM: FOP Labor Council Committee
REFERENCE: Status of Collective Bargaining and Related Litigation
As you know, the FOP Labor Committee has been involved in collective bargaining for a successor labor contract. Our primary objectives have been to (1) remove language in the agreement that allows the Sheriff to unilaterally change General Orders and documents/practices that affect wages, hours and terms and conditions of employment; (2) include language that provides a meaningful disciplinary appeals process; and (3) improve economic conditions, with an emphasis upon moving wages into at least the middle-tier for law enforcement officers in Orange County.
Unfortunately, the OCSO bargaining team responded in predictable fashion: first, it was difficult to obtain bargaining dates; and second, the Agency resisted our detailed proposals to (1) remove many of the existing contract provisions that authorized the OCSO to remove benefits without bargaining, (2) include the requirement that discipline be for “just cause” as is the norm in virtually all other organized law enforcement agencies in Orange County, and (3) improve wages and benefits.
Because the contract expires on October 1, 2014, and the Orange County Commission (which sets the OCSO budget) is in the process of establishing the budget for the fiscal year beginning October 1st, it was of paramount importance that we hit the bargaining table as often as possible before October 1st. This was of particular concern to us in light of the OCSO’s demonstrated propensity in previous negotiations to delay negotiations - intentionally or otherwise - thereby making wage retroactivity a critical concern; retroactivity would not be a concern if the OCSO had offered to make wages retroactive, but it has not, thereby suggesting that OCSO will again attempt to use retroactivity a cudgel against employees in bargaining. Hence, resolving the contract as quickly and fairly as possible - whether via agreement or impasse resolution before the County Commission - is of critical importance.
A Summary of our Wage Proposal
The wage proposal made by the FOP to the Sheriff covered a three year contract period, whereby each year, effective the first payroll beginning September 30, 2014, 2015, and 2016,
respectively, the Sheriff will increase each step for all deputies, corporals and sergeants by three percent (3%), and employees also will simultaneously advance one step in their respective pay plans. This not only gives each deputy, corporal and sergeant an effective 6% annual raise each year, but ensures step movement so that new deputies hired aren’t earning the same pay as the experienced deputies training them, which occurred in previous years when step movement was frozen. Additionally, employees who were in the top step each year will move in to a new top step in the step plan to ensure a 6% raise annually for everyone, allowing each raise to be fully pensionable.
Prior to August 27, the Sheriff made no wage proposals despite opening negotiations nearly four months earlier on May 5. Our negotiating team had expected a wage proposal earlier, especially in light of the wage proposal’s relative simplicity once we actually received one from the Sheriff. In essence, as explained in more detail below, the Sheriff’s wage proposal given on August 27 proposed movement up in steps 3%, but nothing more without a joint effort to ask the county commission for an additional unbudgeted 1.5% raise for all deputies who aren’t topped out in the step plan and a 1.5% lump sum payment to topped out deputies since a new step would not be created to enable topped out deputies to receive the full raise. In essence, topped out deputies at each rank would receive a 3% increase in pay, only half of which would be pensionable. As stated more clearly below, under the Sheriff’s proposal all wage increases in excess of 3% would require county commission approval since the Sheriff did not budget for a larger wage increase when he developed the budget he presented to the county commissioners prior the opening of negotiations with FOP.
The FOP Declares Impasse on August 4th
Although there had been seven (7) bargaining sessions between May 5 and July 30, few substantive agreements had been reached between the parties, so the FOP bargaining team decided to declare impasse. We did so on August 4, and within days thereafter the Public Employees Relations Commission (PERC) supplied both the Sheriff and the FOP with a list of seven arbitrators (called “Magistrates”); we expect PERC to announce which Magistrate has been appointed to make recommendations on all the unresolved contract issues in the very near future; a Magistrate hearing will be held shortly after that. The Magistrate can only make recommendations on the open contract issues; if either the Agency or the FOP disagrees with some or all of the recommendations, the ultimate determination of the contract language (including wages) will be made by the Orange County Commission, not the OCSO.
However, it is important to understand that we will keep bargaining even though the impasse process is underway, and it is our strongest desire to reach agreement by mutual consensus, as opposed to having an agreement “forced” on us by the County Commission. We have met once since impasse was declared - a second meeting was canceled because our lawyer was briefly hospitalized - and hope to meet as many times as possible to reach a final agreement in lieu of the County Commission stepping in and resolving the issues.
The Sheriff’s August 29th Memo and the OCSO’s Failed ULP
As often occurs in collective bargaining, the Employer has distributed to deputies a communication putting its conduct in the best light, often with the intent of driving a wedge between employees. Because employers have a superior ability to communicate with employees (via in-house email), it is often difficult for the employee association to respond, and/or explain the intricacies of the process in writing. Fortunately, because the Sheriff sued the FOP - in the form of a PERC unfair labor practice charge filed on August 22nd alleging that the FOP has been bargaining in bad faith - we have a neutral party’s analysis of the OCSO’s claim that the FOP is bargaining in bad faith: the unfair labor practice charge was swiftly and summarily dismissed by PERC’s General Counsel only six days after it was filed. That means that, even if the party filing the charge (the Agency) could prove the allegations, there still would be no violation of the law. Don’t take our word for it, read the decision Summary Dismissal for yourself.
After the FOP Declared Impasse, the Sheriff Made Its First Real Proposals
As explained above, the FOP has insisted on bargaining, even after we had declared impasse. Once we were able to get the Sheriff back to the bargaining table (August 27th), we finally received significant proposals, some of which are summarized below:
- The Agency proposes to keep everything in the contract status quo. OCSO claims the contract is working just fine as is, and there is no reason to change it, other than some clean up language.
- The Agency provided the following economic offer:
- OCSO would have all eligible Court Service Officers, Deputies, Corporals and Sergeants advance one step (3%) for each fiscal year for the next three years beginning with the October 2nd, 2014 paycheck. Currently topped out CSO, deputy, corporal or sergeants would remain in the topped out step.
- In addition to this step movement, OCSO would increase the steps by an additional 1.5% only for the first two years. So, if you are currently in step 5, step 5 would be increased by 1.5% and you would then move to step 6. In total you would receive approximately 4.5% increase for year one and year two, however the agency could not guarantee year three. If you are currently topped out, instead of a 3% increase, you would receive 1.5% lump sum payout; you would also receive the 1.5% increase to that topped out step.
- Unfortunately, there is a catch to the Sheriff’s economic proposal: the Agency claims that it cannot guarantee the extra 1.5% at this time. OCSO’s proposal provides that the adjustment to the pay plan is “wholly contingent on the Sheriff requesting and obtaining additional funding from the Orange County Board of County Commissioners (BCC). The adjustments will be implemented following the approval by the BCC and will be retroactive to the first paycheck in October. . .” The Agency further requests that, should its proposal be
accepted, that the FOP agree to support the Sheriff’s efforts to request and obtain additional funding necessary to pay for the proposed adjustments. The OCSO’s proposal further provides that the “additional funding requested from and provided by the BCC must be sufficient to cover all costs associated with these wage adjustments which exceed the [currently] 3% budgeted and allocated to the Sheriff for [the] 2014/15 budget. Similarly, the adjustments for fiscal year 2015/16 are wholly contingent on the BCC providing funding sufficient to cover all costs of these adjustments.”
Put differently, the Agency claims it cannot guarantee the extra 1.5% for either of the first two years of the three year contract. Also, if the agency cannot get the extra funding, then, by the Agency’s proposal, the wage article of the contract will be reopened. No other articles will be reopened regardless of whether the extra funding is secured. Additionally, as a condition of the Sheriff’s proposal, the FOP will be required to dismiss the declaration of impasse. OCSO will also dismiss their (already dismissed) charge that the FOP engaged in an unfair labor practice.
Once the FOP declared impasse the Agency made its first wage proposal. It is a start, but only a start, and there are many other issues to address. We will of course keep bargaining. But in the meantime, we will press on with the impasse resolution process in the event bargaining is not fruitful, and if necessary, take our claims to the Magistrate and ultimately the Orange County Commission.
Thank you in advance for your time and attention regarding this matter.
Labor Council Committee
Fraternal Order of Police, Lodge 93