F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 27 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ROY C. JOHNSON; MARK A.
MOORE; DWIGHT E. JACKSON;
STEVEN L. GIBBS; DEBORAH J.
DANIELS-FLEAK; DEBBIE R.
CRISP; DEBRA D. DICKENS;
TAMMARA MCKINNEY-OLDEN;
RUFUS E. NEWSOME; TYRONE D.
LYNN; MARVIN BLADES;
WALTER E. BUSBY, JR.; DERREK
L. LEWIS; RAY D. NELSON;
CORNELIUS D. FINLEY; GARY L.
PITTS; and ALBERT L. YOUNG,
Plaintiffs-Appellees,
CITY OF TULSA,
Defendant-Appellee,
v. No. 03-5086
LODGE #93 OF THE FRATERNAL
ORDER OF POLICE,
Defendant-Intervenor-
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. CV-94-39-H)
Douglas L. Rogers (James E. Phillips with him on the briefs), Vorys, Sater,
Seymour and Pease LLP, Columbus, Ohio, Scott B. Wood, Wood, Puhl & Wood,
P.L.L.C., Tulsa, Oklahoma, with him on the briefs, for Defendant-Intervenor-
Appellant.
Louis W. Bullock (Patricia W. Bullock and Robert Blakemore with him on the
briefs), Bullock & Bullock, Tulsa, Oklahoma, Jean Walpole Coulter, Jean
Walpole Coulter and Assoc., Inc., Tulsa, Oklahoma, with him on the briefs for
Plaintiffs-Appellees, Joel L. Wohlgemuth, Norman, Wohlgemuth, Chandler &
Dowdell, Tulsa, Oklahoma, Martha Rupp Carter, Larry V. Simmons, Tulsa City
Attorney’s Office, Tulsa, Oklahoma, with him on the briefs, for Defendant-
Appellee.
Before TACHA , Chief Circuit Judge, McKAY , Senior Judge , and
TYMKOVICH , Circuit Judge.
TYMKOVICH , Circuit Judge.
Union-intervenor, Lodge #93 of the Fraternal Order of Police (FOP),
appeals the district court’s approval of a consent decree entered between the City
of Tulsa, Oklahoma, and African-American members of Tulsa’s police
department. The consent decree is the negotiated settlement of plaintiffs’ race
discrimination action against the City. Among other things, the consent decree
requires the Tulsa Police Department (TPD) to adopt and implement certain race-
neutral policies and procedures, and provides for the district court’s continuing
supervisory authority over its implementation for a period of at least five years.
The decree applies to all Tulsa police officers and is currently binding on all
parties. FOP argues that the consent decree violates its negotiated rights with the
City under a collective bargaining agreement (CBA) that has been annually
2
renewed since its inception.
On appeal, we must decide (1) whether entry of the consent decree conflicts
either with FOP’s rights under the Oklahoma Fire and Police Arbitration Act,
Okla. Stat. tit. 11, § 51-101 et seq. (2001), or FOP’s collective bargaining
agreement with the City of Tulsa, (2) whether FOP is entitled to a trial on the
merits of the racial discrimination claim since FOP argues the consent decree
adversely affects its legal rights as a third-party intervenor, and (3) whether the
consent decree violates principles of federalism. In a comprehensive 122-page
order, the district court resolved these three issues in favor of the City and
approved the consent decree.
We take jurisdiction pursuant to 28 U.S.C. § 1291 (2000), and affirm the
district court’s approval of the consent decree.
I. Background
A. Original Race Discrimination Suit
This protracted litigation began in 1994 when plaintiff Roy C. Johnson, an
African-American police officer in the Tulsa Police Department, filed a complaint
against the City of Tulsa alleging racial discrimination in employment. In 1998,
the case was certified as a class action. The plaintiff class consists of all current
and future African-American personnel within the TPD, and all former
African-American personnel whose employment terminated on or after January
3
14, 1992. As a class, plaintiffs brought claims under 42 U.S.C. § 2000e (2000)
(Title VII), and 42 U.S.C. §§ 1983 and 1981 (2000), alleging systematic and long-
standing racial discrimination in the TPD in the areas of hiring, promotions,
discipline, training, and assignments. Plaintiffs further alleged that they suffered
a hostile work environment due, in part, to the TPD’s alleged mistreatment of
Tulsa’s minority citizens. The City denied all allegations of discrimination.
From 1998 to 2001, plaintiffs and the City engaged in a costly litigation
battle, conducting over 100 depositions and witness interviews and expending
millions of dollars in attorneys’ fees. As trial neared, the parties began settlement
talks to resolve their differences.
B. April 2002 Consent Decree and FOP’s Intervention
At the end of 2001, the district court stayed the proceedings in order to
facilitate settlement negotiations between the parties. After five months of
discussions, plaintiffs and the City filed a proposed consent decree with the
district court (April 2002 Decree), signifying the long-awaited settlement of the
divisive suit. Tulsa’s incoming mayor, William LaFortune, initially stated that he
had no objection to the April 2002 Decree, and on April 24, 2002, the court sent a
proposed notice of settlement to members of the plaintiff class, TPD officers, and
their union, the FOP.
On May 2, 2002, nearly eight and one-half years after the original race
4
discrimination suit was filed, FOP moved to intervene in the litigation. Both the
plaintiff class and the City objected. 1 Shortly thereafter, FOP petitioned the court
to reject the April 2002 Decree on the grounds that it violated FOP’s rights as the
“exclusive bargaining agent” for TPD officers and contravened the collective
bargaining agreement between FOP and the City.
Holding FOP’s motions in abeyance, the district court held fairness
hearings on the April 2002 Decree in June and July of 2002. At the hearings,
Mayor LaFortune testified that he would have liked more time to decide whether
to endorse the consent decree. TPD officers also gave testimony indicating that
some within the TPD were not fully committed to implementing the proposed
April 2002 Decree. Approximately one month later, in August 2002, Mayor
LaFortune and the City formally withdrew their support for the April 2002
Decree. The district court therefore rejected the April 2002 Decree and put the
case back on trial track.
C. The December 2002 Consent Decree
In September 2002, the district court granted FOP’s motion to intervene,
finding that the union had claimed a sufficient interest in the litigation and that
1
The City suggested that the FOP be allowed to participate in future
settlement conferences but “oppose[d] the FOP’s full intervention as a party
entitled to participate in all future proceedings, including trial.” See Order, No.
94-CV-39-H(M), at 7 n.7 (N.D. Okla. May 12, 2003).
5
those interests would be impaired if the court denied intervention. Approximately
two months later, the district court appointed a settlement judge at the parties’
request. The parties—with FOP as a full participant—met with the settlement
judge on numerous occasions in November 2002. It became clear over the course
of these settlement negotiations that an agreement could not be reached with
FOP’s consent. Therefore, plaintiffs and the City, without the approval of FOP,
filed a second proposed consent decree in December 2002 (December 2002
Decree or consent decree), submitting it to the district court in full settlement of
plaintiffs’ discrimination claims against the City.
The December 2002 Decree required the adoption and implementation of
certain race-neutral policies within TPD. Among other things, it required changes
in hiring, promotions, specialty assignments, grievance procedures, and officer
discipline. In addition, the decree established a Dispute Avoidance and
Resolution Committee in the United States District Court for the Northern District
of Oklahoma, the primary objectives of which were to (1) collect and review
information regarding compliance with the decree, (2) assist the parties in
avoiding future litigation, (3) assist the parties in making the changes required by
the decree, and (4) address disputes over compliance by acting as an alternative
dispute resolution tool.
D. The Collective Bargaining Agreement
6
FOP and the City entered into the CBA at issue in this case in July 2002.
The CBA states that its purpose is three-fold: (1) Establish wages, hours,
benefits, grievance procedures, and other conditions of employment for TPD’s
officers; (2) provide for quality law enforcement and policing services for the
benefit of Tulsa’s citizens; and (3) assist in the amicable adjustment of labor
disputes. The CBA also recognizes FOP as TPD’s “exclusive bargaining agent”
as that term is defined by Oklahoma statute. See Okla. Stat. tit. 11, § 51-102(4)
(2001).
The City, however, is not required to bargain with FOP regarding matters
that are not specifically covered by the terms of the CBA. Article 2 of the CBA,
titled “Management Rights and Responsibilities,” states that
[FOP] recognizes the prerogative of Employer [the City] to operate and
manage its affairs in all respects and in accordance with its responsibilities,
and the powers of authority which Employer has not officially abridged,
delegated, granted, or modified by this Agreement are retained by
Employer, and all rights, powers, and authority Employer had prior to the
signing of this Agreement are retained by Employer and remain exclusively
without limitation within the rights of Employer.
CBA, Article 2, § 2.1. The following section, referred to as the “management
rights” provision, then specifically lists fourteen broad topics that the City need
not bargain over, including matters such as the assignment of working hours,
hiring and promotions, the allocation of work assignments, and officer discipline.
CBA, Article 2, § 2.2 (b), (c), (d), and (g). The management rights provision also
7
retains for the City the right to determine TPD policy, to “manage the affairs of
the Police Department in all respects,” and to “introduce new, improved or
different methods and techniques of Police Department operation or change
existing methods and techniques.” Id. at subsections (a) and (k).
E. The District Court’s Order
Shortly after its submission to the district court, FOP filed objections to the
December 2002 Decree. FOP claimed that the decree (1) violated Oklahoma labor
law by substituting the federal district court for the mandatory arbitration process
provided for under the CBA, (2) violated Oklahoma labor law and the CBA by
obligating the City to unilaterally adopt and/or change policies which are subjects
of mandatory bargaining between employers and police unions, and (3) violated
principles of federalism.
In January 2003, the district court held fairness hearings on the December
2002 Decree. FOP participated in the hearings as a full party to the litigation,
calling and cross-examining witnesses, and introducing evidence in support of its
position. On May 12, 2003, over FOP’s objections, the district court approved the
consent decree. The district court concluded that the decree was “wise, fair, and
fully supported by law” and a “reasonable and equitable” settlement of plaintiffs’
claims against the City. See Order, No. 94-CV-39-H(M), at 114, 121 (N.D. Okla.
May 12, 2003) (District Court Order). In September 2003, this court denied
8
FOP’s motion to stay the district court order. The decree is therefore currently
binding and in effect against the parties.
II. Issues and Standard of Review
The union-intervenor, FOP, contends that the district court erred in
approving the December 2002 Decree over its objections. In particular, FOP
argues that the consent decree (1) violates Oklahoma labor law and the CBA
because it prevents the City from bargaining in good faith with FOP regarding
issues that fall within FOP’s purview as the “exclusive bargaining agent” for TPD
members, (2) adversely affects the third-party legal rights of FOP and its members
without their consent, and (3) violates principles of federalism. FOP asks that we
reverse the district court’s entry of the consent decree and remand for a trial on
the merits of the plaintiffs’ racial discrimination claims. We consider each of
these arguments below.
A consent decree is a negotiated agreement that is entered as a judgment of
the court. See Sinclair Oil Corp. v. Scherer, 7 F.3d 191, 193 (10th Cir. 1993)
(citing Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S.
501, 519 (1986)). “Consent decrees, therefore, have characteristics both of
contracts and of final judgments on the merits.” Id. “The majority rule is, as
with a contract, the interpretation of a consent decree is reviewed de novo.” Id.
(citations omitted).
9
Whether a consent decree conflicts with another written agreement such as
a collective bargaining agreement involves a question of contract interpretation
that we review de novo. See United States v. City of Hialeah, 140 F.3d 968, 973
(11th Cir. 1998) (“It is difficult to envision an issue more purely legal than that of
whether one written agreement, the consent decree, conflicts with another written
compact, the existing collective bargaining agreement.”) (quoting United States v.
City of Miami, 664 F.2d 435, 451 n.7 (5th Cir. 1981) (en banc) (Gee, J.,
concurring in part and dissenting in part)). Whether the consent decree affects
rights derived from state law is also subject to de novo appellate review. See
Salve Regina College v. Russell, 499 U.S. 225, 231 (1991). We apply Oklahoma
law when making both legal determinations. See Sinclair Oil Corp., 7 F.3d at
194.
Although de novo review applies to questions of contract interpretation,
federal appeals courts review a district court’s decision to approve a consent
decree for abuse of discretion. See, e.g., City of Miami, 664 F.2d at 442 (“The
district court’s approval of a proposed settlement by consent decree should be
reversed only if its approval is an abuse of the court’s discretion.”).
III. Whether the Consent Decree Violates FPAA or the CBA
The Oklahoma Fire and Police Arbitration Act (FPAA) makes it unlawful
for a municipality to refuse to “bargain collectively or discuss grievances in good
10
faith with the designated bargaining agent with respect to any issue coming within
the purview of this article.” Okla. Stat. tit. 11, § 51-102(6a)(5) (2001). The
FPAA defines collective bargaining as the mutual obligation of municipalities and
union representatives “to confer in good faith with respect to wages, hours and
other conditions of employment.” Okla. Stat. tit. 11, § 51-102(5) (2001); see also
NLRB v. Wooster Div. of Borg-Warner Corp., 356 U.S. 342, 348–50 (1958)
(noting that, in collective bargaining context, matters which relate to wages,
hours, and other terms and conditions of employment are considered “mandatory
subjects of collective bargaining”). The CBA similarly obligates the City to
bargain with FOP “concerning wages, hours, and other terms of conditions of
employment.”
FOP argues that the district court did not have the authority to approve
the December 2002 Decree because the decree conflicts with FOP’s collective
bargaining rights under Oklahoma law and the CBA. According to FOP, the
consent decree prevents the City from bargaining with FOP regarding subjects of
mandatory bargaining, including rules of employee conduct, work assignments
and promotions, changes in the grievance process, hiring, and other matters
regarding the relationship between the TPD and the FOP’s members. Stated
differently, FOP posits that the consent decree strips FOP of its role as the
exclusive bargaining agent for the TPD’s employees.
11
Plaintiffs and the City, on the other hand, maintain that implementation of
the decree is a legitimate exercise of the City’s authority under the “management
rights” provision set forth in Article 2 of the CBA. 2 As discussed above, that
provision retains for the City the right to “manage the affairs of the Police
Department in all respects” and to “introduce new, improved or different methods
2
Article 2 of the CBA, “Management Rights and Responsibilities,”
provides in relevant part:
Section 2.1 [FOP] recognizes the prerogative of
Employer [the City] to operate and manage its affairs in
all respects and in accordance with its responsibilities,
and the powers of authority which Employer has not
officially abridged, delegated, granted, or modified by
this Agreement are retained by Employer, and all rights,
powers, and authority Employer had prior to the signing
of the Agreement are retained by Employer and remain
exclusively without limitation within the rights of
Employer.
Section 2.2 Except as may be limited herein, Employer
retains the rights . . . as follows:
(a) To determine Police Department policy including the
rights to manage the affairs of the Police Department in
all respects;
...
(j) To establish and enforce Police Department rules,
regulations, and orders;
(k) To introduce new, improved or different methods
and techniques of Police Department operation or
change existing methods and techniques.
12
and techniques of Police Department operation or change existing methods and
techniques.” CBA, Art. 2, § 2.2 (a) and (k).
Thus, whether the consent decree conflicts with state law or the CBA turns
on whether the CBA’s management rights or other provisions precluded the City
from adopting the employment provisions embodied in the consent decree.
Oklahoma law applies to our interpretation of the CBA. See Sinclair Oil Corp. v.
Scherer, 7 F.3d 191, 194 (10th Cir. 1993).
A. Interpretation Standard
First, the parties dispute the standard of interpretation applicable to the
CBA. Specifically, FOP argues that the district court erred in concluding that the
“contract coverage” standard applied to its interpretation of the management
rights provision. As articulated in NLRB v. United States Postal Service, the
contract coverage standard states: “when [an] employer and union bargain about
a subject and memorialize that bargain in a collective bargaining agreement, . . .
there is no continuous duty to bargain during the term of an agreement with
respect to a matter covered by the [CBA].” 8 F.3d 832, 836 (D.C. Cir. 1993)
(citations omitted).
In its stead, FOP maintains that the Oklahoma Public Employees Relations
13
Board (PERB) 3 has adopted the “clear and unmistakable waiver” interpretation
standard set forth by the Supreme Court in Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983). See FOP Lodge 125 v. City of Guymon, PERB No. 329
(1996), available at http://www.ok-perb.state.ok.us. Under that standard,
plaintiffs and the City would be required to show specific intent by FOP to waive
its right to bargain over each particular subject of the consent decree. We
disagree that this is the standard in Oklahoma.
In determining that the contract coverage standard applied in this case, the
district court relied on Fraternal Order of Police, Lodge No. 151 v. City of El
Reno, PERB No. 353 (1998), and Lodge No. 103, Fraternal Order of Police v.
City of Ponca City, PERB No. 349 (1997), both available at http://www.ok-
perb.state.ok.us. Both of these PERB decisions apply the contract coverage
standard. They both state, for example, that parties to a collective bargaining
agreement may agree to a management rights provision “which permits the
employer to issue policies and make substantive changes concerning terms and
conditions of employment during the term of a collective bargaining agreement
3
The PERB, a statutorily created body composed of three members
appointed by the Governor, is the entity vested with the power under the FPAA to
“adopt, promulgate, amend, or rescind such rules as it deems necessary” and to
hold public hearings on “any proposed rule of general applicability designed to
implement, interpret, or prescribe policy, procedure or practice requirements
under the provisions of [the Act].” Okla. Stat. tit. 11, § 51-104(D) (2001).
14
without requiring bargaining by the employer on such subjects.” City of El Reno
(citing United States Postal Service, 8 F.3d 832); City of Ponca City (same).
Furthermore, “an employer’s unilateral change in mandatory subjects of
bargaining during the term of a contract is permissible when a management rights
clause evidences a grant of permission by the union to unilaterally effect such
changes.” City of El Reno (citing I.A.F.F. Local 2171 v. City of Del City, PERB
Case No. 194 (1990)); City of Ponca City (same).
We agree with the district court that these PERB decisions adopt the
contract coverage standard set forth by the D.C. Circuit in United States Postal
Service and that the standard should be applied here. The authority cited by FOP
in its brief on appeal either predates these decisions or is inapposite. Therefore,
as did the district court, we apply the contract coverage standard to the terms of
the CBA.
B. Application of the Contract Coverage Standard
Applying the contract coverage standard of interpretation here, we conclude
that the CBA did not bar the City from entering the consent decree without
bargaining with FOP, and thus the consent decree does not violate state labor law
or the CBA. As the PERB stated in City of El Reno and City of Ponca City,
An employer does not violate any duty to bargain when it alters subjects
such as the reduction in the number of hours, assignments of employees, or
a change in the system of progressive discipline when the management
rights clause of the collective bargaining agreement negotiated between the
15
employer and the union gives the employer the right to make, issue and
enforce such policies or practices.
City of El Reno (citations omitted); City of Ponca City (citations omitted).
We find that City of El Reno and City of Ponca City are directly applicable
here. FOP and the City agreed to the CBA’s management rights provision. The
management rights provision broadly states that the City “retains” the rights to
“manage the affairs of the Police Department in all respects,” to “establish and
enforce Police Department rules, regulations, and orders,” and to “introduce new,
improved, or different methods and techniques of Police Department operation.”
CBA, Art. 2, § 2.2 (a), (j) and (k). As the district court found in its
comprehensive review of FOP’s objections, this broad language plainly
encompasses the City’s right to enter into a remedial consent decree during the
term of the CBA. We are bound to enforce that agreement as written. See United
States Postal Service, 8 F.3d at 836.
In addition to this broad language, the CBA’s management rights clause
specifically retains for the City the right to hire, promote, and discipline
employees, as well as to allocate and assign work within the TPD. CBA, Art. 2,
§ 2.2 (c), (d), and (g). We therefore cannot credit FOP’s assertion that these
topics are subject to mandatory bargaining under the CBA. 4
4
The only topic covered in the consent decree that arguably falls outside
(continued...)
16
Given our holding that the CBA’s management rights provision entitled the
City to enter into the December 2002 Decree without impinging on FOP’s
bargaining rights, the question becomes whether the decree prohibits the City
from bargaining in good faith with respect to the terms of future collective
bargaining agreements. Under the FPAA, collective bargaining agreements are
limited to one-year terms. See Okla. Stat. tit. 11, § 51-111 (2001). Because the
consent decree will be in place for at least five years, FOP argues that the City’s
position on subjects of mandatory bargaining will be “locked in” when
negotiating subsequent collective bargaining agreements. As such, it maintains
that the decree violates its statutory right under the FPAA to bargain in good faith
with the City on terms and conditions of employment.
Nonetheless, we must reject, as speculative, FOP’s argument that the
consent decree violates its rights with respect to future collective bargaining
agreements. First, although we assume that the consent decree will be taken into
account when the parties negotiate future collective bargaining agreements, we
cannot know what terms will be on the bargaining table during those negotiations,
and, second, whether those terms would be potentially affected by the consent
4
(...continued)
the CBA’s management rights provision deals with changes in grievance
procedures. However, as we discuss infra at section IV(A), the Dispute
Avoidance and Resolution Committee established by the consent decree does not
alter FOP’s arbitration rights under the CBA.
17
decree. The question is entirely hypothetical at this time. It is, in fact, more
likely that a conflict between the consent decree and CBA will not arise in future
negotiations.
The consent decree itself acknowledges the continuing validity of the CBA
and states that “all operating directives provided for by this Decree shall be read
to be in accordance with language in the CBA.” December 2002 Decree, § 1.5.
If, however, during collective bargaining negotiations the parties cannot
determine whether a proposed provision conflicts with the consent decree, they
are free to adopt the provision subject to future interpretation by the signatories to
the decree, or to seek guidance from the district court, which retains jurisdiction
over the case during the consent decree’s term. 5 See December 2002 Decree,
§ 32.1. The consent decree, no more than the management rights provision of the
CBA, does not shut down future negotiations on covered topics. Nothing in the
FPAA gives FOB the unfettered right to insist on particular terms and conditions
of employment, and to then arbitrate the City’s failure to acquiesce to those
particular terms. In fact, the FPAA itself acknowledges that the obligation to
5
To the extent the December 2002 Decree were to create a future conflict,
we note that it is the City, not FOP, that would bear the weight of that conflict.
See W.R. Grace and Co. v. Local Union 759, 461 U.S. 757, 767–70 (1983) (noting
the dilemma faced by a company in having to choose between honoring a
conciliation agreement and a collective bargaining agreement, but holding that the
company “was cornered by its own actions, and it cannot argue now that liability
under the collective-bargaining agreement violates public policy”).
18
negotiate in good faith does not “compel either party to agree to a proposal or
require the making of a concession.” Okla. Stat. tit. 11, § 51-102(5) (2001).
As a final matter, the consequences of FOP’s view is that bargaining agents
that intervene in federal employment discrimination cases would have plenary
power to veto all settlements which touch on terms and conditions of employment.
Such a result not only neuters the CBA’s management rights provision to which
FOP agreed, but would also unduly frustrate Congress’s preference for achieving
Title VII compliance by voluntary means. See Alexander v. Gardner-Denver Co.,
415 U.S. 36, 44 (1974) (cooperation and voluntary compliance were selected as
the preferred means for achieving compliance with Title VII); see also Kirkland
v. New York State Dep’t of Corr. Servs., 711 F.2d 1117, 1126 (2d Cir. 1983) (“[A]
rule indiscriminately enabling all intervenors in these cases to veto proposed
compromises would seriously hamper efforts to settle Title VII cases, thereby
frustrating Congress’s expressed preference for achieving Title VII compliance by
voluntary means.”) (citation omitted). The checks and balances employed by the
district court to allow intervention, as well as the court’s careful consideration of
all of FOP’s arguments concerning the application of the CBA and the FPAA,
undercut any notion that FOP’s collective bargaining rights are unfairly restricted.
FOP’s argument on this point is therefore unpersuasive.
C. Additional CBA Provisions
19
FOP also contends that, even if the contract coverage standard applies, the
district court’s interpretation of the management rights provision fails to give
effect to other provisions of the CBA. In this regard, FOP points out that the
management rights provision states that the City retains certain powers “[e]xcept
as may be limited herein.” CBA, Art. 2, § 2.2. FOP then argues that the CBA’s
“prevailing rights” clause, CBA, Art. 11, § 11.3, limits the City’s power to enter
into the consent decree.
In accordance with § 51-111 of the FPAA, the prevailing rights clause
provides:
all rules, regulations, fiscal procedures, working conditions,
departmental practices and manner of conducting operation and
administration of . . . police departments currently in effect on the
effective date of any negotiated agreement shall be deemed part of
said agreement unless and except as modified or changed by the
specific terms of such agreement.
CBA, Art. 11, § 11.3. FOP interprets this language to mean that if there is no
specific agreement in the CBA to change the TPD’s existing policies or practices,
those policies and practices become part of the agreement, and, accordingly, must
be considered mandatory subjects of bargaining. We disagree.
A plain reading of the prevailing rights clause does not mandate that all
existing policies and practices are subjects of mandatory bargaining. It merely
states that existing policies survive the formation of a CBA unless specifically
altered by the new agreement’s terms. As explained above, the management
20
rights provision allows the City to make substantive changes in specified areas
without first bargaining with the union. Therefore, the CBA’s prevailing rights
clause and management rights provision do not conflict.
IV. Whether The Consent Decree Adversely Affects FOP’s Rights
The next issue is whether the December 2002 Decree impermissibly alters
FOP’s contract rights under the CBA. FOP argues that the consent decree “binds”
it and imposes legal obligations without its consent, thus entitling FOP to a trial
on the merits of plaintiffs’ race discrimination claims. Again, we disagree.
A. The Supreme Court’s Decision in Local No. 93
The Supreme Court’s decision in Local No. 93, Int’l Ass’n of Firefighters v.
City of Cleveland, 478 U.S. 501 (1986), guides our analysis on this issue. There,
as here, the intervening-union challenged the validity of a consent decree between
plaintiffs and the city on the grounds that it was entered into without the consent
of the union. Finding that the consent decree did not impose any legal duties or
obligations on the union, the Court held that a district court was not barred from
approving the consent decree over the union’s objections. Id. at 528–29. The
court noted that one party to a case “--whether an original party, a party that was
joined later, or an intervenor--[may not] preclude other parties from settling their
own disputes and thereby withdrawing from litigation.” Id. at 529. “[T]hus,
while an intervenor is entitled to present evidence and have its objections heard at
21
the hearings on whether to approve a consent decree, it does not have power to
block the decree merely by withholding its consent.” Id.
At the same time, however, the Court noted that a consent decree may not
impose duties or obligations on an intervenor that does not consent to settlement,
nor dispose of valid claims the party has under the Constitution, a statute, or
contract. Id. at 529–30. “[I]f properly raised, these claims remain and may be
litigated by the intervenor.” Id. Thus, a nonconsenting intervenor may block
approval of a consent decree only if the decree adversely affects its legal rights or
interests. See United States v. City of Hialeah, 140 F.3d 968, 975 (11th Cir.
1998) (holding that a consent decree requires the consent of all parties whose
legal rights will be affected); see also United States v. City of Miami, 664 F.2d
435, 447 (5th Cir. 1981) (en banc) (noting that only a party potentially prejudiced
by a decree has a right to a judicial determination on the merits of its objections).
In the present case, FOP has not demonstrated that the December 2002
Decree adversely affects any of its legal rights. As in Local No. 93, the consent
decree here does not bind FOP to do or not to do anything, nor does it impose any
legal obligations on FOP. Local No. 93, 478 U.S. at 529–30. Additionally, “only
the parties to the decree [i.e., plaintiffs and the City] can be held in contempt of
court for failure to comply with its terms,” and the consent decree “does not
22
purport to resolve any claims [FOP] might have under the Fourteenth
Amendment.” Id. at 530 (citations omitted). Thus, under the Supreme Court’s
reasoning in Local No. 93, we find that the consent decree does not impermissibly
affect FOP’s legal rights.
We nonetheless address FOP’s argument that the Dispute Avoidance and
Resolution Committee created pursuant to the December 2002 Decree alters
FOP’s arbitration rights under the CBA. Specifically, FOP contends that the
Committee replaces the CBA’s arbitration procedures and impermissibly moves
dispute resolution from the arbitration forum into the district court.
Section 51-111 of the FPAA requires all collective bargaining agreements
between police unions and municipal employers to contain a clause “establishing
arbitration procedures for the immediate and speedy resolution and determination
of any dispute which may arise involving the interpretation or application of any
of the provisions of such agreement or the actions of any of the parties
thereunder.” Okla. Stat. tit., § 51-111 (2001). The CBA complies with this
requirement at Article 7. Section 7.1 of the agreement states: “The [FOP] or any
member(s) of the bargaining unit may file a grievance concerning the meaning,
interpretation, application, or alleged violation of the terms and provisions of this
Agreement.” Further, § 7.6 sets forth procedures for the arbitration of any
dispute not resolved by the standard grievance process.
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Rejecting FOP’s argument that the Dispute Avoidance and Resolution
Committee infringes on Oklahoma’s mandatory arbitration requirement, the
district court found as follows:
[I]mplementation of the Committee as provided for in the proposed
decree is not intended to, and will not, replace the compulsory
arbitration process set forth in the CBA and FPAA. Both the CBA
and the FPAA specifically refer to the arbitration of issues under the
CBA. In contrast, Section 22.1 of the December 2002 Decree makes
it clear that the Committee’s responsibilities relate solely to the
proposed decree, and not to issues arising under the CBA.
Moreover, contrary to the FOP’s assertions and the language in the
Plaintiffs’ and the City’s brief, the Committee to be established
under Sections 21 through 24 of the proposed decree will not be
“deciding” issues at all. [Rather], the Committee’s powers are
limited to assisting the parties in reviewing information and
discussing issues relevant to the proposed decree in order to avoid
future litigation.
Thus, because the Court finds that the Committee created pursuant to
the December 2002 Decree will not decide issues regarding
interpretation, enforcement, or application of the provisions of the
CBA and because nothing prevents the FOP from grieving and
arbitrating any valid issues that may arise under the CBA, the Court
finds that the December Decree does not substitute the Court for the
mandatory arbitration process required by the CBA and the FPAA.
District Court Order at 99–100 (citations omitted).
We agree with the district court’s interpretation and conclude that the
December 2002 Decree does not adversely affect FOP’s arbitration rights under
the CBA. As the district court found, FOP retains the right to arbitrate issues
arising under the CBA; nothing in the pertinent sections of the December 2002
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Decree suggests that the Dispute Avoidance and Resolution Committee will
infringe upon such right. Thus, the federal district court will not, as FOP
maintains, usurp the traditional role of the labor arbitrator. 6 Given these
conclusions, FOP’s argument that the district court becomes a gatekeeper for
union members’ grievances and that the consent decree creates an impermissible
two-track grievance system must also be rejected.
B. Trial on the Merits Not Needed
A final question concerning FOP’s intervention is whether the union can
force a trial on the merits of the race discrimination claims. Relying on Sanguine,
Ltd. v. United States Dep’t of Interior, 798 F.2d 389 (10th Cir. 1986), and W.R.
Grace and Co. v. Local Union 759, 461 U.S. 757 (1983), FOP argues that its
contract rights under the CBA are irrevocably prejudiced without a trial on the
merits. In Sanguine, we held that because “issues essential to the intervenors
were resolved by consent decree and not adversary litigation, [the] case presents a
unique situation in which prejudice to the intervenors can be avoided only by
6
FOP cites City of Muskogee v. Martin for the proposition that “[i]n the
presence of any dispute regarding the interpretation of a collective bargaining
agreement, the first remedy lies with the contractually-agreed-upon arbitration,
and the district court has no authority to disturb the function of arbitration.” 796
P.2d 337, 340 (Okla. 1990). However, because we concluded that the December
2002 Decree does not disturb FOP’s right to arbitrate issues under the CBA, City
of Muskogee is inapposite. For the same reasons, we conclude City of Bethany v.
PERB, 904 P.2d 604, 608 (Okla. 1995), does not require another result.
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setting aside the prior judgment and allowing the opportunity to litigate the merits
of the case.” Id. at 391 (emphasis added). The case is distinguishable. The
intervenor in Sanguine was not granted intervenor status prior to entry of the
decree and thus was unable to effectively present its objections to the decree. In
contrast, here, the district court permitted FOP to intervene prior to settlement
negotiations, to file written objections to the consent decree in the district court,
and to participate in the fairness hearings as a full party to the litigation.
Accordingly, as was the case with the intervening union in Local No. 93, FOP was
afforded “all the process that [it] was due.” Local No. 93, 478 U.S. at 529.
The Supreme Court’s decision in W.R. Grace is similarly unhelpful to FOP.
There, the negotiation process leading to a conciliation agreement between the
Equal Employment Opportunity Commission and an employer did not include the
intervening union. 461 U.S. at 771. Thus, the Supreme Court found that
“[a]bsent a judicial determination, the Commission, not to mention the Company,
cannot alter the collective-bargaining agreement without the Union’s consent.”
Id. (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)). However,
here, we have already determined that the consent decree does not alter FOP’s
rights under the CBA. Moreover, FOP was included in the negotiation process
and given an opportunity to present objections to the district court. Thus, W.R.
26
Grace is not applicable. 7
V. Whether Entry of the Consent Decree Violates Principles of Federalism
FOP’s final argument in opposition to the consent decree is based on its
reading of federalism principles. Reduced to its essence, FOP contends that the
settlement constitutes an impermissible intrusion by the district court into matters
of state and local law enforcement because the consent decree (a) inserts the court
into the disciplinary process of the TPD, (b) establishes new qualifications for
police officers, and (c) diminishes the accountability of state and local officials.
As such, FOP argues that the consent decree offends the balance that has been
struck between federal-state relations under the Tenth Amendment to the United
States Constitution. We review the district court’s conclusions on this issue de
novo. City of Wichita v. United States Gypsum Co., 72 F.3d 1491, 1495 (10th
Cir. 1996).
The Supreme Court has given us guidance on when equitable or structural
relief may raise federalism concerns. In Rizzo v. Goode, 423 U.S. 362 (1976),
plaintiffs brought two class actions under 42 U.S.C. § 1983 against the city of
Philadelphia, its mayor, and several city officials. Plaintiffs alleged a pattern of
mistreatment by police officers against minority citizens. The district court
7
FOP’s reliance on Martin v. Wilks, 490 U.S. 755 (1989), is similarly
misplaced. Unlike here, in Wilks the complaining party never intervened in the
underlying lawsuit.
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ultimately directed the city to “submit to the District Court for its approval a
comprehensive program for improving the handling of citizen complaints alleging
police misconduct.” Rizzo, 423 U.S. at 365. In assessing the scope of the federal
court’s equitable power, the Supreme Court observed that principles of
federalism, “which play such an important part in governing the relationship
between federal courts and state governments, . . . have applicability where
injunctive relief is sought . . . against those in charge of an executive branch of an
agency of state or local governments.” Id. at 380. The Supreme Court also
admonished federal courts granting equitable relief against state actors to be
“constantly mindful of the ‘special delicacy of the adjustment to be preserved
between federal equitable power and State administration of its own law.’” Id. at
378 (quoting Stefanelli v. Minard, 342 U.S. 117, 120 (1951)).
Although a federal court’s discretion to enter or enforce a consent decree is
not identical to a federal court’s discretion to fashion an equitable remedy after a
finding of liability, the two discretionary acts implicate similar federalism
concerns. See Ragsdale v. Turnock, 941 F.2d 501, 515 (7th Cir. 1991) (Flaum, J.,
concurring in part and dissenting in part) (“In entering a consent decree, a district
court employs a remedy of the flexibility that has typically characterized equitable
relief.”). Several courts addressing federalism concerns in the context of consent
decrees voluntarily entered by state officials have concluded that the state’s
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consent to the proposed decree obviates or minimizes federalism concerns. See
Labor/Community Strategy Ctr. v. Los Angeles County Metro. Transp. Auth., 263
F.3d 1041, 1050 (9th Cir. 2001) (stating that the local agency’s consent to a
remedial scheme in proposed consent decree relieves many federalism concerns);
Allen v. Alabama State Bd. of Educ., 816 F.2d 575, 577 (11th Cir. 1987) (“It is, of
course, right for United States Courts to be concerned about the vitality of our
federal system; but we disagree that enforcing a settlement made by a state board
undercuts important principles of federalism.”); see also Duran v. Carruthers,
678 F. Supp. 839, 852 (D.N.M. 1988) (“It would be a bizarre perversion of the
principle of comity to suggest that a federal court is required, in order to preserve
state autonomy, to override the decisions of state officials and substitute its own
judgments.”).
In contrast, other courts have held that principles of federalism ought to be
considered regardless of whether the state actor consents to the proposed decree.
See Kasper v. Board of Election Comm’rs of the City of Chicago, 814 F.2d 332,
340 (7th Cir. 1987) (observing that, in a state election matter, “the [Election]
Board’s willingness to transfer its responsibilities to the federal court does not
oblige the court to accept”); Lelsz v. Kavanagh, 807 F.2d 1243, 1252 (5th Cir.
1987) (vacating consent decree that created “federal court remedy unfounded in
federal law [that] intrudes into the governance of matters otherwise presided over
29
by the states”); Georgevich v. Strauss, 772 F.2d 1078, 1085 (3d Cir. 1985)
(holding that, in light of the district court’s legitimate concerns about
federal-state relations, court did not abuse its discretion in declining to approve
the consent decree); cf. New York v. United States, 505 U.S. 144, 181 (1992)
(certain portions of federal low-level waste siting statute held unconstitutional
even though state officials consented to its enactment).
We agree that overreaching consent decrees, even with governmental
blessing, may impermissibly enlist the federal courts into excessive supervision of
state government. Here, however, we are forced to conclude that the scope of the
decree and the City’s consent minimizes such federalism concerns.
Several factors are persuasive in this case. The City, after all, did not ask
to be in federal court. It found itself the recipient of a difficult and protracted
Title VII lawsuit. After several failed settlement attempts over the course of nine
years, the City sought to extract itself from the litigation—both its costs and
uncertainties—by agreeing to the December 2002 Decree and the district court’s
continuing jurisdiction over Title VII compliance. The City was a willing
participant in the settlement, and it reaped the benefits of avoiding an expensive
and racially divisive trial. Mayor LaFortune testified that he believed the
settlement was in the best interests of the City and was a satisfactory conclusion
to the highly publicized suit. FOP’s federalism argument is therefore
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unpersuasive, as City officials not only agreed to the scope of the proposed
consent decree, but were actively involved in negotiating its provisions as a party
to the case.
Moreover, on its face, the employment terms of the consent decree do not
create an unacceptable level of federal intrusion into the day-to-day workings of
the police department. Indeed, much of the consent decree evokes a common
sense approach to potential liability exposure under federal law. A review of the
December 2002 Decree reveals that it is (a) narrowly tailored to address alleged
Title VII violations brought by plaintiffs in this case, (b) limited in time, and (c)
subject to modification if necessary. We therefore conclude that the consent
decree does not excessively intrude into areas of traditional state concern, and,
therefore, does not violate principles of federalism.
VI. Conclusion
For the above reasons, we conclude that the December 2002 Decree does
not conflict with Oklahoma labor law or the CBA and that it does not otherwise
adversely affect FOP’s legal rights. We also conclude that the consent decree
does not constitute an impermissible intrusion into matters of state and local law
enforcement in violation of federalism principles. Therefore, the district court
did not abuse its discretion in approving the December 2002 Decree, and the
district court’s order is AFFIRMED.
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