vs. ) DOAH CASE NO. 75-1109
) PERC NO. 8H-CA-752-0047 TEAMSTERS LOCAL UNION No. 769, )
INTERNATIONAL BROTHERHOOD OF ) TEAMSTERS, CHAUFFEURS, ) WAREHOUSEMEN AND HELPERS OF ) AMERICA, )
Respondent. )
THIS CAUSE came on to be heard, after due notice, at Ft. Lauderdale, Florida, on September 8, 1975, pursuant to a complaint issued by the Public Employees Relations Commission under Section 447.503(3)(a), Florida Statutes, and Section 4.03 of the Commission's Rules and Regulations, as a result of unfair labor practice charges made by Teamsters Local Union #769 against Broward County and Broward County Board of County Commissioners.
For Employer : Joseph A. Caldwell, Sr., Esquire
For Employee : Allen M. Elster, Esquire Organization MAMBER, GOPMAN, EPSTEIN & FOOSANER
For Public : Thomas W. Brooks, Esquire Employees 2005 Apalachee Parkway
Prior to the hearing, the Employer filed a Motion to Dismiss and/or Motion to Stay with the Public Employees Relations Commission (hereinafter "PERC")(Respondent's Exhibit 1) which was denied by the Chairman of PERC on August 28, 1975.
At a prehearing conference immediately preceding the hearing, the Employer (hereinafter "Respondent") moved to strike the words "and that unless it does so all of the allegations in the complaint may be deemed to be admitted to be true and may be so found by the Commission" which appeared in the last substantive
paragraph of the complaint, on the grounds that the filing of an answer is permissive under the pertinent statute rather than mandatory, and that rules of PERC which formerly required a Respondent to file an answer in unfair labor practice cases have been revoked. Over the objection of counsel for the Commission, the motion was granted by the Hearing Officer.
The Respondent objected to the fact that the General Counsel of PERC did not have the burden of proof to establish the charges in these proceedings.
This objection was overruled pursuant to rule 8H4.08(a), F.A.C. which specifically places the burden of proof on the charging party and permits the General Counsel, in his discretion, to assume part or all of the burden of presenting the evidence in support of the allegations in the complaint.
Broward County and Broward County Board of County Commissioners is a Public Employer within the meaning of Section 447.203(2), F.S. (stipulation of parties).
The Teamsters Local Union #769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is an Employee Organization within the meaning of Section 447.203(10), F.S. (stipulation of parties).
In January, 1974, thirty three airport security police employees of the Respondent who worked at the Ft. Lauderdale- Hollywood International Airport and North Perry Airport signed cards authorizing Teamsters Local Union #769 (hereinafter "Union") to represent them for the purpose of collective bargaining with the Respondent (Complainant's Exhibit 6, testimony of Mr. Sack).
By letter of January 7, 1974, to Mr. Robert R. Kauth, Broward County Administrator, the Union advised that it represented the airport security employees police and requested that the Respondent recognize the Union as the collective-bargaining representative of the employees and enter into negotiations for the purpose of obtaining a collective bargaining agreement. The Union further offered to demonstrate evidence that it represented the aforesaid employees (Complainant's Exhibit 7, testimony of Mr. Sack).
Mr. Kauth responded in a letter dated January 28, 1974, and advised the Union that its letter had been referred to the Board of County Commissioners, but in view of "existing state law", the Commission was unable to and could not recognize the Union as the collective bargaining representative of the airport employees in question (Complainant's exhibit 8).
The Union responded by a letter of January 30, 1974, requesting that Mr. Kauth identify the "existing state law" referred to in his letter and advised that the International Union's Constitution specified that the Union did not assert the right to strike amoung employees in the public sector. It also informed Mr. Kauth that the Florida Constitution and statutes guarantee public employees the right to organize and to bargain collectively through a representative of their choice (Complainant's Exhibit 9).
Receiving no further response from the Respondent, the Union filed a complaint for declaratory relief and mandatory injunction in the Circuit Court of the Seventeenth Judicial Circuit for Broward County requesting the Court declare that the Union be recognized by the Respondent as the collective bargaining representative for the airport security police employees who had designated the union to represent them, and directing and requiring the
Respondent to enter into collective bargaining with the Union as required by Art. 1, Section 6 of the Florida Constitution, and Section 839.221(2), F.S. On July 29, 1974, the Court entered a final decree requiring Respondent to grant recognition to the Union pursuant to Art. 1 Section 6 of the Florida Constitution "as the collective bargaining representative or agent of those airport security police officers employed by the Defendants at the Ft.
Lauderdale-Hollywood Airport and North Perry Airport, who, are members and who remain members of the Plaintiff or who have freely and expressly given their consent to the Plaintiff labor organization to act as their collective bargaining agent" (Complainant's Composite Exhibit 11).
As a result of the court order, the parties began bargaining, and proposals and counter-proposals were exchanged during the period commencing August, 1974 (Complainant's Exhibit 13, testimony of Mr. Sacks).
At one of the negotiating sessions in October, the Respondent gave the Union its proposal for a recognition clause in the eventual agreement, which provided that the Respondent recognized the Union as the collective bargaining representative for those employees who were and would remain members of the Union, and that it would continue recognition after January 1, 1975 for the term of the agreement provided that the Union complied with all state requirements pertaining to recognition as contained in Chapter 447, F.S., and that otherwise recognition and the agreement would cease forthwith (Complainant's Exhibit 14, testimony of Mr. Elster). The Union thereupon filed a motion in the Broward County Circuit Court to hold the Respondent in contempt for violation of the previous final decree. The court, on October 30, 1974, citing Sections 447.009 and .022, F.S., found that the Respondent's proposal as to recognition was not a proper subject of collective bargaining at that time and ordered that it be stricken as a proposal (Complainant's Exhibit 15).
At the twelfth negotiation session held on January 8, 1975, the parties reached a proposed collective bargaining agreement, with representatives placing their initials on a rough-draft (Complainant's exhibit 16). Counsel for Respondent agreed to provide a final draft in one week which thereafter was to be submitted to the county commission and the Union membership for approval and ratification. On January 17, the employees in the unit voted to accept the, agreement and new authorization cards were executed by the employees. At this time there were 49 employees in the unit and 46 authorization cards were signed at this time (Complainant's Exhibit 18). Further correspondence and discussions ensued, resulting in agreement on a final draft of the proposed agreement (Complainant's Exhibits 17-21). Article 1 of the proposed agreement concerning recognition provided that the county recognized the Union as the collective bargaining representative of all airport security officers employed by the county at the airports in question "who are members and who remain members of the union, or who have freely and expressly given their consent to the Union to act as their collective bargaining agent". The draft was approved by telegram from the Union's Counsel on February 20th, A except for failure to put the effective date of the agreement, i.e., January 8, 1975 in the draft (Complainant's Exhibit 22).
Upon request of the Union, the matter was placed on the agenda of the Board of County Commissioners for its March 4th meeting. By letter to the County Administrator, dated February 28, Respondent's counsel advised that the original recognition had been by court order to recognize the Union "for members only"; that new state labor legislation required that a labor organization register with and be certified by the Public Employees Relations Commission as the majority representative of employees in an appropriate bargaining unit
before a legal obligation by a public employer to recognize and bargain with the Union is established; that the Union had not met the registration and certification requirements and that the County was currently appealing in the Fourth District Court of Appeals the order of the lower court which had stricken one of the Respondent's contract proposals during negotiations. He therefore stated that it would be appropriate for the County Commission to consider the appeal before rendering a decision on the proposed agreement (Complainant's exhibit 23). The County Commission, at its meeting, deferred action on the agreement because the Union had not been registered nor certified under current law, and directed its counsel to request an advisory opinion from PERC on the status of the Union in reference to the state statute (Respondent's Exhibit 2). By letter, dated March 12, counsel for the Respondent sought such an advisory opinion from PERC (Respondent's Exhibit 13). Notwithstanding the lack of action by the County Commission, Respondent's Director of the Division of Airports determined to observe the terms of the proposed contract as to various working conditions (Complainant's Exhibit 24).
The Union had made an abortive attempt to register with PERC on June 28, 1974, but this was before PERC had been organized and apparently the request was never received (Complainant's Exhibit 12, testimony of Mr. Sack and Mr. Elster). On March 10, 1975, the Union again submitted registration materials to PERC and, by letter of March 25, 1975, the Commission advised the Union that it had met the registration requirements of the statute (Complainant's Exhibit 28). On April 18, 1975, the Union filed a Recognition - Certification petition with PERC seeking certification of the airport security police personnel (Complainant's Exhibit 30), and on May 8, 1975, the Union filed the unfair labor charge against the Respondent alleging that it had violated Section 447.016(1)(a)(c), F.S., by attempting to withdraw recognition that was previously established between the parties and by refusing to sign a final agreement which had been agreed upon on January 8, 1975, (Complainant's Exhibit 1). On or about May 16, 1975, the Union filed with PERC a Motion to Waive the Posting Requirements of Recognition Acknowledgement and Motion to Expedite Processing of Unfair Labor Practice Charges (Complainant's Exhibit 31). In this motion, the Union requested that the posting requirements of recognition acknowledgement under PERC Rule 8H-200.4 (now 8H-2.04) be waived and certification issued based on the fact that it would be inequitable and against the intent and purposes of the statute to deny certification under Section 447.009(1) because recognition had been obtained by court order and the Union represented a majority of the employees in the unit. However, the petition for Recognition - Certification was withdrawn by the Union on June 3, and by letter of June 10, PERC advised it that the withdrawal request had been approved (Complainant's Exhibit 32). The record does not disclose that PERC took any action on the Union's aforesaid motion to waive the posting requirements of recognition-acknowledgment.
In April and early May, the parties met and negotiated over a "wage reopener" provision contained in the proposed collective bargaining agreement. However, on May 19, Respondent's Counsel declined to grant a request for a further meeting stating that since the Union had rejected counter-proposals of the Respondent's negotiating team on April 21, it was felt that further meetings would be unproductive (Complainant's Exhibit 25-27).
On July 31, 1975, the Union filed an amended unfair labor practice charge against the Respondent and, on August 8, the Acting General Counsel of PERC issued a Complaint and Notice of Hearing which alleged unfair labor practices in violation of Section 447.501(1)(a) and (c) by reason of Respondent's refusal to execute the agreed upon contract and by unilaterally
terminating negotiations with the Union thus having failed and refused to bargain in good faith (Complainant's Exhibit 1).
On September 12, 1975, subsequent to the hearing, the Fourth District Court of Appeal rendered an opinion that the points on appeal were moot and that jurisdiction of the issues involved between the parties is in PERC pursuant to Section 447, F.S., and dismissed the appeal of Respondent concerning its proposed recognition clause (Hearing Officer's Exhibit 1).
CONCLUSIONS OF LAW
The alleged unfair labor practice charges are defined in Chapter 447, F.S., as follows:
"447.501 - Unfair Labor Practices
Public Employers or their agents or representatives are prohibited from:
Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.
(c) Refusing to bargain collectively, failing
to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit."
Because the complaint did not allege a specific violation of Section 447.501(1)(a), other than that embraced within Section 447.501(1) the latter provision is determinative of the unfair labor practice charges. The complaint apparently relies upon Respondent's refusal to execute the agreement agreed to and initialed by the representatives of the parties on January 8, 1975, and its termination of continued negotiations with the Union commencing on May 19, 1975, as constituting a "failure to bargain collectively in good faith" and "refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit" as violations of Section 447.501(c). These allegations will be considered in reverse order.
The Respondent contends that it did not refuse to sign the agreement in question, but merely deferred action on the matter pending a response to its request for an advisory opinion concerning the question of registration and certification of the Union from PERC, which was never provided. It further asserts that, assuming arguendo, there was a "final" agreement that it had refused to sign, the Union was not registered and certified under the "PERC Act" (Chapter 74-100) and therefore falls outside the protection of Section 447.501(c). On the other hand, the Union's position, which is supported by the PERC General Counsel, is that the Union was "judically certified" as a result of the final decree of the Broward County Circuit Court in July, 1974, and, consequently, the Respondent was under an obligation to sign the proposed agreement. In support of the novel concept of "judicial certification", the General Counsel cites various cases where the NLRB has asserted its exclusive jurisdiction in areas previously regulated under state labor laws; however, these cases involve a policy of comity in situations where a unit previously has been certified under existing state laws, which is not the case here. The Hearing Officer is bound by the terms of the applicable statute and implementing rules and regulations in determining the existence of any unfair labor practices. If, after a perusal of the statutory requirements, it should be considered necessary to resort to judicial precedent in the federal sphere or
from other states to resolve any ambiguities or gaps, recourse to outside sources would be appropriate. The instant case does not pose such a requirement.
Chapter 447, F.S., contains a number of definitions which are determinative in resolving the issue presented. Section 447.203(7) defines "Bargaining unit" as a unit determined by the Commission, or one determined through local regulations promulgated pursuant to 447.603 of the statute (Local option), or a unit determined by the public employer and the public employee organization and approved by the Commission to be appropriate for the purposes of collective bargaining. Since none of these criteria apply in the instant case, it cannot be considered that the Union represents a "bargaining unit" as referred to in Section 447.501(c). Section 447.203(11) defines "Bargaining agent" as the employee organization which has been certified by the Commission as representing the employees in the bargaining unit" as provided in Section 447.307, or its representative. Section 447.203(14) defines "Collective bargaining" as the performance of the mutual obligations of the Public Employer and the bargaining agent of the employee organization to meet at reasonable times to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employment, except that neither party shall be compelled to agree to a proposal or to be required to make a concession unless otherwise provided in the statute. In like manner, Section 447.309(1) regarding collective bargaining provides as follows:
"(1) After an employee organization has been certified pursuant to the provisions of this
part, the bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers jointly shall bargain collectively in the determination of the wages, hours and terms and conditions of employment of
the public employees within the bargaining unit. The chief executive officer or his representative and the bargaining agent or its representative, shall meet at reasonable times and bargain in good
faith. In conducting negotiations with the bargaining agent, the chief executive officer or his representative shall consult with, and attempt
to represent the views of, the legislative body
of the public employer. Any collective bargaining agreement reached by the negotiators shall be reduced to writing, and such agreement shall
be signed by the chief executive officer and the bargaining agent. Any agreement signed by the chief executive officer and the bargaining
agent shall not be binding on the public employer until such agreement has been ratified at a regularly scheduled meeting of the public employer and by public employees who are members of the bargaining unit, subject to the provisions of sub- sections (2) and (3)." (Emphasis Supplied)
The parties stipulated at the hearing that PERC has not certified the Union under either of the methods provided in Section 447.307, i.e., voluntary recognition by the employer or after a representation hearing and election ordered by PERC. Accordingly, since under the Act, a public employer is not required to bargain collectively until an employee organization has been
certified pursuant to the provisions of the Act, Respondent cannot be found to have failed to bargain collectively in good faith. In like manner, since the collective bargaining agreement in question was not agreed upon between a public employer and a certified bargaining agent for a bargaining unit, as those terms are defined in the Act, there can be no finding of a refusal to sign the agreement in violation of the statute. It is therefore concluded that the Respondent did not commit the unfair labor practices alleged in the complaint.
Although the Union and the General Counsel maintain that the final decree of the Broward County Circuit Court was tantamount to certification as contemplated in the statute, there is no statutory authority for "judicial certification". It is true that if the collective bargaining which ensued as a result of the court order had resulted in the execution of a final agreement prior to the effective date of the new state law, the agreement would have remained in effect until its expiration pursuant to Section 447.603. Such was not the case, however. The initialed draft agreement, although ratified by the airport employees, was not executed by the Respondent and, in any event, was not reached until after January 1, 1975, the effective date of the new legislation. It is also noteworthy that the court order, while ordering the Respondent to grant recognition to the Union, restricted the latter's collective bargaining representation to those airport security employees who were members and remained members of the Union or who had freely or expressly given their consent to the Union to act as their collective bargaining agent. It did not purport to define an appropriate bargaining unit as provided in Section 447.307(3). The attempt of the Union and General Counsel at the hearing to present evidence as to an appropriate bargaining, unit (evidently to provide a basis for a future determination by PERC in this respect), was not permitted by the Hearing Officer because such a matter was not properly in issue under the complaint and was deemed to be outside the scope of the hearing. Also, it is beyond question that the Respondent recognized the Union and bargained collectively only by virtue of judicial compulsion and at no time could any of its actions be construed as constituting voluntary recognition.
It is recognized that the Union has spared no effort in its attempt to obtain an agreement with the Respondent over the years. However, there is nothing to preclude it from filing an appropriate petition for certification under Section 447.307 in order to comply with the pertinent provisions of the Act. The progress that has been made heretofore in concluding an acceptable bargaining agreement should provide a means to reach a speedy and appropriate conclusion of the matter in consonance with the stated policy of the Act to promote harmonious and cooperative relationships between government and its employees, both collectively and individually.
It is recommended that the Public Employees Relations Commission, pursuant to Section 447.503(4)(b) issue an order dismissing the charges.
DONE and ENTERED this 7th day of November, 1975, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Allen M. Elster, Esquire
Thomas W. Burke, Esquire 2005 Apalachee Parkway
Joseph A. Caldwell, Sr., Esquire Suite 600, 100 Biscayne Boulevard North Miami, Florida 33132
