STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF TARPON SPRINGS, )

)

Employer, )

)

and ) CASE NO. 75-1101

) PERC Case No. 8H-CA-756-1020

INTERNATIONAL ASSOCIATION ) OF FIREFIGHTERS, LOCAL 2353, )

)

Employee. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice at City Hall, 104 South Pinellas Avenue, Tarpon Springs, Florida, on September 26, 1975, at 11:00 a.m. before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter arose upon the filing of a charge of an unfair labor practice by the International Association of Firefighters, Local 2353 (Charging Party) with the Public Employees Relations Commission (PERC) against the City of Tarpon Springs, hereinafter referred to as the City or Employer. A preliminary investigation was conducted by PERC, and the Acting General Counsel, having determined that there was substantial evidence indicating a prima facie violation of the PERA, issued a Complaint and Notice of Hearing.

APPEARANCES ALLEN M. BLAKE, Esquire

Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601

TOM BROOKS, Esquire, Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32304

FINDINGS OF FACT

1. The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration.

   
   

2. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because

   it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams.

   
   

3. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager.

   
   

4. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra.

   
   

5. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.

   
   

   CONCLUSIONS OF LAW

   
   

6. The position of the Employer regarding the Williams' complaint is that it did not arise under the contract and therefore was not subject to the grievance procedure.

   
   

7. Regarding the alleged violations of Section 447.501(1)(c), Florida Statutes, the Employer has argued that it did meet and discuss the grievance and therefore did not fail to bargain collectively in good faith, but concluded that Williams had been correctly placed in the new pay plan and that his complaint did not arise under the contract. The Employer further argues that its position was discussed and made known to the Charging Party, and that it is a long standing principle of labor law in the private sector that the duty to bargain collectively concerning disposition of grievances does not compel the employer to agree to a union's contention that certain subject matter constitutes a grievance.

   
   

8. The Employer also argues that regardless of the other factors, the event upon which the Williams' complaint is based occurred more than six months prior to filing of the grievance.

9. The collective bargaining agreement provides in Article 9, Section 1 and Section 2 as follows:

   
   

   "Section 1. A grievance is defined as a complaint arising out of an alleged vio- lation concerning wages, rates of pay and other terms and conditions of employment covered by this Contract.

   
   

   Section 2. Grievances or disputes which may arise, including the interpretation of this Contract, shall be settled in the following manner: . . . (emphasis supplied)

   
   

10. Article 13, Section 2 and Section 3 provide for a pay schedule to be applicable effective October 1, 1974 which is based upon years of service. Williams' grievance asserts that in December 1974 he was not paid in accordance with his appropriate classification under the plan in Article 13.

    
    

11. Williams' grievance on its face does not seek to go outside the contract or reopen some official action or decision which occurred prior to the contract. Williams seeks to have his pay properly computed and to be placed in the proper pay classification for the period of the agreement under the procedures provided in the agreement. The issue of the grievance is therefore not whether Williams was misclassified in June 1973, but whether under the applicable provisions of the City's personnel rules and the contract whether he was erroneously classified under the new agreement. Therefore, Williams' grievance clearly relates to wages covered by the contract during the period of the contract, and was filed within six months of the date he was first paid under the contract, contrary to the Employer's argument. See Section 447.503(4)(c), F.S.

    
    

12. Even though, admittedly, Williams had asserted he was misclassified under the preexisting pay plan, there was no evidence presented that this was the result of an official action or decision regarding his service credit. On the contrary, Williams' complaints to his superiors had apparently never been officially resolved through any preexisting process. An employer cannot be placed in the position under the terms of the collective bargaining agreement to open up official decisions and actions which had occurred prior to entering into the agreement. This would place an undue burden on the employer and such actions and decisions are barred in a manner analogous to laches and res judicata. However, there was never any official resolution of Williams' complaint, and he cannot be said, based on the evidence, to have sat on his rights. On the contrary, Williams actively sought but could not obtain a resolution of his complaint. Under Article 9, therefore, Williams' complaint was a proper subject for the grievance procedure.

    
    

13. According to the evidence, the city did meet and discuss the case with the Charging Party. However, the issue is whether the city, having determined that the matter was not grievable, met in good faith. The city refers to cases from the private sector to buttress its argument that it was only required to make its position regarding the nature of Williams' grievance known to the Charging Party. This may be the law within the private sector; however, in the public sector employees may not strike. The Hearing Officer would agree with the argument presented by the General counsel that there is a greater duty on the public employer to move to final and binding arbitration. If a public

    employer can unilaterally reach a decision and thereby avoid arbitration, then there is no real collective bargaining or good faith discussion of grievances. This ability to unilaterally stiffle resolution of grievances is in fact coercive and denies the very rights secured to public employees under the Florida Constitution and Chapter 447, Florida Statutes.

    
    

14. The Hearing Officer finds support for this finding in noting that Article 9, Section 2 clearly states that questions regarding interpretation of the contract are themselves subject to the grievance procedure. Therefore, it would appear from the face of the agreement that neither party could unilaterally arrive' at an interpretation of the agreement, or in this instance, determine whether Williams' complaint arose under the contract.

    
    

15. The fact that Williams was allegedly misclassified in June 1973, is immaterial. There is no evidence that there was any official decision resulting in Williams' classification. There is no evidence of any official action taken regarding Williams' subsequent complaints about his alleged misclassification. There is no isolated point of decision to which one can refer. Rather, this alleged misclassification can better be described as a condition which came into being and continues to exist. This differentiates it from a condition which, although now existing, was the result of a past demotion, transfer, dismissal, etc. As stated above, by filing his grievance Williams has not sought to reopen some official action or decision affecting his wages since June 1973, but has sought solely to resolve his classification pursuant to Article 13, Section 3, for the operative period of the contract, October 1, 1974.

    
    

16. The Hearing Officer finds that by unilaterally refusing to take Williams grievance to the last step of the grievance procedure set out in the collective bargaining agreement, the Public Employer:

    
    

    1. Refused to discuss grievances in good faith pursuant to terms of the collective bargaining agreement with the Charging Party or employee in violation of Subsection 447.501(1)(f), F.S., as charged in paragraph 11 of the Complaint;

       
       

    2. Interfered with, restrained and coerced its employees in the exercise of their rights guaranteed under the act in violation of Subsection 447.501(1)(a), F.S., as charged in paragraph 9 of the Complaint; and

       
       

    3. Refused to bargain collectively in good faith in violation of Subsection 447.501(1)(c), F.S., as charged in paragraph 10 of the Complaint.

       
       

17. The Hearing Officer further finds that by continuing to unilaterally refuse to take Williams' grievance to the last step of the grievance procedure set out in the collective bargaining agreement, the Public Employer continues to violate the above listed statutory provisions in the manner set out above as charged in the Complaint and thereby has committed and is committing am unfair labor practice.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement.

Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission.

This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601

Tom Brooks, Esquire Staff Attorney

Public Employees Relations Commission Suite 300

2003 Apalachee Parkway

Tallahassee, Florida 32301

Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive

New Port Richey, Florida

Docket for Case No: 75-001101

Orders for Case No: 75-001101