STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF ESCAMBIA COUNTY, )
)
Respondent, )
and ) CASE NO. 75-1791
) PERC NO. 8H-CA-754-1110;
ESCAMBIA EDUCATION ASSOCIATION, ) 1117 and 1132
)
Charging Party. )
)
RECOMMENDED ORDER
This case was tried before me on due notice on December 1, 2 and 3, 1975. 1/ The Complaint and Notice of Hearing along with a consolidation notice was issued on October 16, by the acting general counsel of the Public Employees Relations Commission.
Copies were served on all parties to the proceeding.
APPEARANCES
Chief Negotiator for Escambia County School Board: Dr. E. P. Moses
610 Madison Avenue
Alexandria, Virginia 22312
Appearing on Behalf of Escambia County School Board: Mr. Joe Caldwell, Esquire
Muller and Mintz
100 Biscayne Boulevard North, Room 601 Miami, Florida 33132
Public Employees Relations Commission: Jack L. McLean, Jr.
Acting General Counsel and Gerald Williams, Staff Attorney
2003 Apalachee Parkway, Suite 103
Tallahassee, Florida 32301
Appearing for Charging Party:
Richard H. Frank, Esquire Flagship Bank Building, Suite 500 Tampa, Florida 33602
ISSUES
The issues in the case are whether or not the Respondent (1) during the course of an organizing campaign by the Union engaged in a course of conduct amounting to unlawful surveillance and/or creation of the impression of surveillance (2) whether or not Respondent unlawfully refused to bargain in good faith with the Union and (3) whether or not Respondent unlawfully refused to execute dues checkoff authorizations signed by its employees. By the alleged acts referred above, the Respondent allegedly engaged in unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Florida Statutes 447. As stated, these issues arise on a complaint issued October 16, by the acting general counsel of the Public Employees Relations Commission (hereinafter referred to as PERC), as amended at the trial after PERC's investigation of-the charges filed by the Union on various dates. The Respondent denied the commission of any unfair labor practices.
At close of the testimony all parties waived oral argument.
A brief has been received by counsel for the general counsel and has been carefully considered by me in preparation of this hearing officer's report and recommended order which was signed and released by me on March 17, 1976, for distribution to the parties in the usual course.
Upon the entire record in the case, observation of witnesses on the stand, and considerations of arguments of counsel, I make the following:
FINDINGS OF FACT
Respondent's operation and the status of the Union. The Respondent is now and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Union is an employee organization within the meaning of Section 447.203(2) of the Public Employees Relations Act (hereinafter referred to as the Act). The Union was certified by the Commission on April 22, order no. 75E-6-31 and the parties commenced bargaining on or about April 23, 1975, and notice of
negotiations was forwarded to the Commission's office on or about May 5, 1975.
By way of background, the case was originally noticed for hearing to commence on October 29 and 30, 1975, in the Escambia County Courthouse. The Respondent, on October 29, applied for and obtained a temporary restraining order which had the effect of commanding the Public Employees Relations Commission to refrain from conducting or attempting to conduct the hearing based on the charges alleged in the subject complaint and notice of hearing.
On the following day, the School Board filed a non-suit which had the effect of resolving the temporary restraining order. Prior thereto and subsequent to the non-suit, the Respondent filed numerous motions for continuance and dismissal based on alleged procedural violations. The basis of the procedural deficiencies were that (1) PERC failed to advise the Respondent of its investigation prior to issuing complaint and therefore the complaint was improperly issued. Additionally, the Respondent alleged that it has filed charges of a similar nature against the Union and that PERC has failed to expedite investigation of said charges which according to Respondent, amounts to violations of bad faith bargaining by the Union also in violation of Florida Statutes 447. Accordingly, Respondent asked that continuance be granted and that a period somewhere in the nature of 30 days be allowed to consider the charges alleged. Respondent also filed motions to dismiss alleging inter alia, that the charges filed by the Charging Party are false and groundless and that representatives of the Charging Party and PERC's agents have colluded to effectuate violations of its rules and enabling statutes as set forth in the complaint. Based thereon states the Respondent, it has been deprived of its opportunity for investigation and defense of the matters asserted in the administrative charges and the complaint and therefore the complaint should be dismissed. Aside from the fact that the hearing officer is without the authority to grant motions to dismiss, looking to the motion to dismiss and the motion for continuance, no evidence other than the bare claims were made to substantiate all of the allegations contained in both the motion to dismiss and the motion for continuance. Accordingly they are tentatively denied by the undersigned and the motion to dismiss is referred to PERC for final ruling. Respondent's counsel also made a motion for continuance on the final day of the hearing and as grounds therefor alleged that he had been recently retained.
Aside from the fact that the testimony revealed that the law firm had been retained to represent Respondent months prior to the instant hearing, Dr. Moses, Respondent's chief negotiator under-
took to represent Respondent at the hearing. Additionally, the motion was denied as being untimely filed.
THE REFUSAL TO DEDUCT DUES ISSUE
Guy Price, Special Education Teacher for approximately 4- 1/2 years, testified that he is a union member and that he signed a dues deduction authorization form in 1971. 2/ Price testified that the Respondent has refused to deduct dues since on or about July. He testified that the Respondent caused to be circulated in October, a notice which indicated it would only deduct dues pursuant to authorizations on a lump sum basis for the yearly dues which, according to the testimony, amounted to $110.00. He testified that inasmuch as he could not afford the lump sum deduction, he canceled his authorization go or about October 6.
He testified that he was aware personally of approximately 10 other employees who canceled their dues deduction authorization based on the fact that according to his testimony, they were unable to afford a lump sum deduction. He testified that the Respondent permits piece meal deductions of other organizational and benefit drives whereas it refused to do so in this case. On cross-examination, he testified that during the months of March thru June, no deductions were made. On redirect examination, he reiterated his prior testimony that he canceled his dues deduction authorization based on the fact that he could not afford the lump sum payment as indicated by the Respondent's notice to employees. Carl Ledehman, an employee for approximately 18 months and a Union member indicated that he canceled his dues deduction authorization based on the fact that he too could not afford a lump sum deduction as testified to by Guy Price. He testified that the Respondent indicated sometime in early October that it would only deduct Union dues in a lump sum fashion and that based on this announcement, 3/ he then canceled his dues deduction. He testified that inasmuch as the Respondent indicated that it would only deduct dues pursuant to a lump sum method, he canceled his authorization and that he did so for no other purpose. He testified as did Mr. Price that to his knowledge, the Respondent deducts contributions for hospital, cancer and the united givers fund as well as other benevolent and humanitarian purposes.
Albert M. Robuck, an employee for approximately 6 years, testified that he, signed a dues deduction authorization form yearly and that the employer refused, sometime in October, to deduct dues on a monthly basis. He testified that he received several memos citing in essence that Respondent would only deduct dues on a lump sum basis. Based on this statement, he canceled his dues deduction authorization on or about October 12, and that along with his cancellation, approximately three other teachers canceled
their dues deduction authorization. He testified that he was aware that the employer is presently deducting health insurance, annuities and other deductions monthly.
Jackie Barrineau, the Union's Chairperson and an employee for approximately three years as a teacher, testified that she has been a Union member throughout her employment with the Respondent. She testified that the Respondent submitted what she considered to be exorbitant proposals for the cost of processing the dues deductions and that the proposals ranged from $12,500.00 annually to its last offer which amounted to .05 per card per month for each employee utilizing the dues deduction procedure. On April 21, 1975, she testified that the Union agreed to pay $325.00 for dues deduction for the remainder of the school year, whereas the Employer on July 15, proposed the amount of $12,500.00 for dues deduction. She testified that the Employer amended its position and countered with the same figure it had originally proposed. Approximately two days later on July 17, the board reduced its cost for processing dues deductions and reduced the $12,500.00 figure to .50 per card per month for each employee utilizing dues deduction. In late July the parties declared an impasse and during the numerous proposals which were submitted during the impasse on or about September 4, the Respondent resubmitted the
$12,000.00 figure as the cost for deducting dues. See for example Charging Party's Exhibit 7 received in evidence and is made a part hereof by reference. She testified that despite the adamant position taken by the Respondent on dues deduction, she did not cancel her dues authorization. On cross-examination she corroborated the fact that the parties tentatively agreed to a provision whereby the Respondent would deduct .05 per card for each member utilizing the dues deduction authorization procedure. The Employer advised that it had received legal advice regarding the legality of the notice given employees whereby it would only deduct dues in a lump sum and that a local attorney, William Davenport, advised that that procedure was permissible. She testified that she is charged with giving collective bargaining advice to all employees within the County School System. She testified as to a problem the Respondent advised that it had relative to incorrect signatures and improper amounts being recorded on dues authorization cards and that that was part of the stated motivation for the Employer cancelling the procedure of deducting dues on a monthly basis. She testified that as to the Respondent's release of its intention to deduct dues only on a lump sum basis, a substantial number of employees withdrew from the Union.
The Respondent also claims that it refused to honor existing dues authorizations which were executed by its employees because numerous cards were either incorrectly executed or were undated. There is nothing in Section 447.303, F.S., which saddles Respondent with the responsibility of insuring that dues deduction authorizations are properly executed. Nor was there any credible testimony from any employee that dues deductions were being made without their express authorization. It thus appears that the Respondent's stated concern about the legality or propriety of the dues authorizations was nothing more than a pretext to effectuate its real desire of securing from employees mass cancellation of their dues authorizations and thus stifle the Union's ability to function. This becomes more apparent when consideration is given to the Respondent's attitude at the bargaining table relative to the amount that it proposed to the Union for the administrative costs for providing the dues deduction service. Respondent maintained the same basic "no give" position on this issue until the entry of the mediator into the negotiations. Although not specifically urged by Respondent as a defense to the refusal to deduct dues allegation, small mention was made of the fact that no contract was in existence between the parties when it (Respondent) ceased to deduct dues on a monthly basis as had been its practice during the remainder of the school year following the Union's certification as exclusive bargaining representative for Respondent's instructional personnel. Inasmuch as the statute which is pertinent to dues deduction (447.303, F.S.) at no point refers to the existence of a collective bargaining agreement as a prerequisite to dues deduction authorizations, the undersigned is constrained to conclude that the statute which is specific on its face, must be applied literally. Accordingly, even if Respondent had urged that as a defense for its actions stated above, the undersigned would recommend rejection of that ground as basis for its refusal to deduct dues pursuant to authorizations. 4/
THE SURVEILLANCE ISSUE
Jack Bridges, who is the Employer's Director of Industrial Services and who is responsible for the media, news releases, etc., testified that he photographed pickets who picketed the Respondent's school administration building during the summer months of 1975. He testified that Charging Party's composite of approximately 17 pictures which the Respondent utilized in order to maintain a "historical" file. He testified that he was responsible for taking approximately 7 pictures and he recognized, after having been shown Mrs. Barrineau, Martha Smith and another teacher whom he described as being an active Union supporter. He testified that there was no blocking of ingress and
egress into the school building and that the pickets picketed approximately 6 times. He testified that he had received advance notice from the news paper and TV advertisements that there would be a picket at the administration building. He testified that the photos were taken to the Director of Employee Relations, Dick Phillingem. 5/ He testified that the photos were taken with the school's camera and film. Bridges further testified that there were no blacks picketing during the time the photos were made and that to the best of his recollection there were only two pickets. On cross-examination he testified that he had received advance notice of racial picketing but that no photos were made nor was the division in which he headed asked to take pictures of such demonstration. On further recross, he testified that he was, contrary to his earlier testimony, asked to take pictures of racial matters. Thomas J. Le Master, the Respondent's Assistant Superintendent for approximately 5-1/2 years, testified that the pictures were taken to determine whether or not employees were breaking the law and to place such pictures in the labor files.
He testified that Phillingem asked him if he had anyone to take pictures whereupon the answer was elicited that pictures were made such that there could be a record of labor relations. He testified that he was present at a school board meeting during mid September and that the pictures were discussed at such meeting and during a further conversation with Mr. Phillingem. He testified that he talked closely and worked closely with Phillingem on all matters relating to the operation of their division. When shown the pictures in Charging Parties Exhibit 11, he was able to identify the subjects in the pictures A,D,C,F and G. He testified that he presently serves on Respondent's bargaining team and has done so since January, 1975, when the pertinent divisions of Section 447, Florida Statutes, became operative. He testified that he had not witnessed a labor trial although he had seen Charging Party's Exhibit 2 which as stated was the notice to employees regarding dues deductions. The notice bears a date of October 2nd. On cross-examination, he also testified that the pictures were shown at a public board meetings and that few comments were made regarding the subjects contained on the pictures. He testified that the file which the pictures were part of, is used in collective bargaining negotiations between the Charging Party. He did not elaborate on this point. He testified that he obtained his advance notice for the picketing through either the news paper or the television. Dick Phillingem, Manager of Employee Relations for the past year, has been employed by the Respondent for approximately 24 years in various positions. He testified that he maintained records regarding employee relations and he referred to such correspondence a "blurb" sheets and Escambia Education Association fliers. He testified that he did
not talk about his prior conversation regarding this hearing. He gave Le Master instructions to take the pictures. He testified that the instructions were to take pictures of bath the pickets and the legends contained thereon. Messr. Bridges called to inform him that the pictures were to be delivered to him via a courier and that he thereafter disbursed them at the Board meeting. He utilized the pictures to keep current his file which he uses to monitor Union activity. During the normal course of his work day he spends approximately 80 percent of his time visiting teachers, coordinators and checking records on disclosures at discussions of board meetings. When asked for the purpose for which he was collecting a "history" for his files, the witness was unspecific however, he did testify that no attempts were made to utilize the pictures for reprisals. Jackie Barrineau, who previously testified, was recalled and testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that there were approximately 25 pickets and that she confronted Jack Bridges and approximately 2 other photographers whose names she did not recall and that she approached Bridges and informed him that she did not like the idea of his taking photos of her. She testified that the Union obtained a Writ of Mandamus to compel the Respondent to disclose the budget and Dr. Moses' contract with the Respondent.
The pickets expressed to her their fear of retaliation for engaging in such acts. There was no blockage of ingress or egress of the school's administration building where the picketing occurred. When shown the pictures, she was able to identify most of the subjects. She testified further that the picketing was at all times peaceful. On cross-examination she also stated that she is the Union's public relations official and reiterated her identification of Mr. Bridges as one of the photographers. 6/
Dr. Ruby Jackson Gainer, a counselor dean and an employee for approximately 20 or more years, testified that she engaged In the picketing and that she was also intimidated by a managerial employee taking pictures of her while she was picketing. She testified that despite this fear, she went along with the idea of picketing because she felt "committed to her task." She recalled an incident whereby she was discharged and her tenure removed due to her engagement in a walkout during school year 1968. She testified that the employer tried to discharge her for taking two days' sick leave and that this action was turned over to the professional practices committee. On or about August 28, she testified that she was demoted from administrative dean to counselor dean and that the difference being that as counselor dean, her work station is located in an isolated area removed from the other school facilities.
William McArthur, the Respondent's Personnel Director, testified that the picketing occurred in front of the school building which is where his office is located. He is a member of the board's negotiating team and he testified that he was unaware of any employees being intimidated based on their engaging in picketing. He corroborated the earlier testimony that the pickets did not block any ingress or egress to the school's administrative building. He is the custodian of the instructional personnel records and to his knowledge, there was no data placed in the personnel files regarding the picketing. He also testified that the Respondent does not maintain any separate personnel file for pickets. He testified on cross-examination, that he viewed the picture in Mr. Odom's office which were lying on his desk uncovered. He was unable to witness pickets from the school's building as was previously testified to by other witnesses.
In the private sector, the NLRB has consistently held that direct surveillance by company supervisory employees or executives is intimidating and coercive. However, the mere presence of a supervisor or agent of a Respondent is insufficient to prove surveillance where such presence is not out of the ordinary. In this case, evidence reveals that the occurrence of the picketing was a matter of common knowledge throughout the county. The picket was so well known that there was extensive media coverage. The evidence reveals further that the photos were passed around at a public School Board meeting and that since that time no reprisals have been practiced upon the subjects appearing in the photographs. There was no evidence that employees' job activities were more closely scrutinized than before the picture taking episode occurred.
Jackie Barrineau, a chief spokesman for the Union testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that approximately 25 pickets gathered in front of the school's administration building and that Jack Bridges and two other photographers took pictures of the pickets. She as well as other witnesses testified that they feared reprisals would be taken against them for engaging in the picketing and that they were unable to discern any useful purpose as to why the pictures were being taken by Jack Bridges. The evidence also reveals that the Respondent's agents testified that the purpose for which the photos were made was to maintain "history" for their files. Further testimony on this point, however, reveals that the photos were openly discussed at a public meeting and that no attempts were made by the Respondent and/or its agents to utilize those photos for retaliation or for any
other purpose unlawful under Chapter 447, Florida Statutes. The record was barren of any evidence that the Respondent attempted to use the pictures from the pickets to substantiate retaliatory motives. While one witness testified that she was demoted because she participated in a strike several years ago, such testimony standing alone is insufficient to base a finding that the Respondent during the picketing in 1975 utilized or planned to utilize the photos for some unlawful purpose. Furthermore, there is no evidence to show that the Respondent treated picketing employees any differently than it did any other employees who engaged in the strike following the time that the photos were taken.
This tends to show the exact opposite of a surveillance situation or the creation of the impression of surveillance as alleged. It is true that there was scant evidence that the Respondent utilized the materials in a file relative to labor relations matters, no ulterior or unlawful motive was attached or shown by the evidence. While one might infer or surmise that the photos would be utilized for discriminatory purposes, there was no proof of that and mere suspicion is no substitute for proof. For these reasons, the undersigned hereby recommends that the surveillance issue be dismissed for lack of proof.
THE REFUSAL TO BARGAIN ISSUE
Fred Haushalter, the Charging Party's Executive Director for approximately 8 years and a consultant, testified that he requested access to budget information from the comptroller and for a copy of the contract given to the Respondent's labor negotiator, Ed Moses. He testified that the request was made on or about 5 different times during the month of July, 1975. He said when Respondent refused to honor his request for budget papers at the school board meeting, the mandamus suit was filed to compel disclosure whereupon the court ordered the Respondent to turn over those documents and, ill addition, the Union was awarded attorney's fees and cost for bringing the action. He testified that the school board plead that it was unable to pay any additional salaries since revenues were right and further, that there would be no economic improvements contained in the collective bargaining agreement that the parties were negotiating. He testified that all bargaining team members were notified that there would be no economic improvements forthcoming from the Respondent. On cross-examination, he testified that he requested the school board's budget work papers and a tentative budget. He testified that bargaining commenced in late July, 1975. Specifically, he testified that he asked the comptroller, Messr.
Olden, for a copy of the tentative budget. Beginning in April, 1975, the Union formally began to formulate proposals and the procedure utilized was that of past practice when the employee organization had utilized in negotiating prior contracts. By letter dated September 8, Robert C. Mott, Deputy Superintendent, stated that he was supplying, (1) a copy of the tentative 75-76 budget; (2) a copy of Dr. Moses' contract; and (3) a copy of the administrative salary schedule. He testified that of the data which was requested by the union, some could not he supplied immediately as some of it needed to be assembled. As to the other request, Mott advised that "since it related so directly to the collective bargaining scene," he would need the "legal advice" from Dr. Moses concerning that data. He concluded by stating that he would submit the requested data when he was able to either assemble it or when Dr. Moses gave him the proper advice. 7/ He testified that Moses was Respondent's chief spokesman as of May 20, and that there were approximately 13 sessions. He phoned Dr. Moses on June 12, 13, 16, 18, 19, 20, 23 and 24 and he (Moses) failed to respond to his phone calls. He had previously been advised by Dr. Moses on June 4 that a negotiating session could be arranged on June 9. He testified that when his phone calls to Dr. Moses were unanswered, he started calling the school board's secretary; Mr. Phillinger and a Mr. Davis, who according to his testimony is Dr. Moses' assistant. Davis took the message and informed him that he would give it to Dr. Moses immediately. When he spoke to Mr. Phillinger, he indicated that he would try to contact Dr. Moses as soon as possible. After approximately 10 or more phone calls, Moses returned his call on June 24, a Tuesday, and informed him that he was told that no one would be in the office until around 1:00 p.m. on that day, i.e., June 24. He testified that Phillinger, Director of Employee Relations, stated that he would contact Dr. Moses since he did not have the authority to arrange dates for collective bargaining negotiation sessions. The following day a Messr. Leper was called and he informed him of the difficulty that he had encountered in trying to contact Dr. Moses. He testified that during a two-week period he made approximately 22 phone calls to both officers of Educational Services Bureau, Inc., a consulting firm in which Dr. Moses is employed and serves as its Executive Vice President. He testified that when he finally made contact with Dr. Moses, they arranged a tentative date of July 1 to commence negotiations and that he requested dates of June 25 or 26 and to that request, Moses indicated July 1 would be the earliest date. He testified that at the July 1 session, Moses brought with him no proposals, but merely read a statement that the union's proposals were hastily prepared and irresponsible. He testified that the negotiating team which consisted of approximately 6 members began
preparing the original proposal in October of 1974 and that special preparation lasted through April 1975 when formal proposals were submitted. He testified that Phillingem advised that the employer would only discuss the preamble and the following three articles, mainly (1) recognition; (2) association and teacher rights and (3) negotiation procedures. 8/ He testified that at that session, Respondent would only propose language regarding the recognition article. During that meeting the employer submitted its "guidelines for negotiation" and previously thereto on April 23, Respondent advised that it would have prepared at its next session, a counter proposal. The Union's proposal consisted of some 123 pages containing approximately 33 articles. The next meeting was held on May 19, and the parties agreed to payroll deduction for the remaining school year. He testified that Moses, at that meeting, advised that he wanted the Union's negotiating team to "localize the agreement." He testified that the next three sessions mainly consisted of questions by Moses, who informed the Union's bargaining team that "when we start bargaining, we will get. responses." 9/ On cross-examination, Moses asked the witness a number of questions regarding the Union's necessity of affiliation, the understanding as to why two whereases were included in Hue Union's preamble and other questions regarding language contained in provisions of its (the Union's) proposal.
Moses inquired of him what his definition of good faith bargaining was and how the Union derived the one 1000th figure as the cost for dues deduction payments. He testified that Moses indicated to him that most of the Union's proposals were "non-bargainable items." The Respondent counter-proposed with a one page proposal. The Employer's initial counterproposal, which was submitted on July, in essence contained provisions that all offers were package offers which had to be either accepted or rejected as a package; that the contract term be two years and that the salary level be that level that was paid to instructional personnel the last school year. The proposal also contained provisions that all negotiable benefits be maintained at the funded level as contained ill the last contract and for existing benefits only; that final and binding arbitration be added to the present concept of grievance as is now in use in the Escambia County Schools.. The counterproposal ended with a provision which stated that all other bargainable items proposed by the union and identified as bargainable by the board were rejected. 10/ Mrs. Barrineau testified that the board's final proposal which was mailed to the teachers contained provisions whereby lunch hours were discretionary with the principal; a no strike provision; dues deduction and mileage allowance which was less beneficial than that contained in the predecessor agreement. The counterproposal
also contained more restrictive provisions regarding maternity leave, personal leave and a two year contract term. There was a provision regarding association and teacher rights, three paid holidays, professional leave and procedures for reviewing personnel files. There was a provision controlling posting, voluntary transfers, class size, teacher's schedules, $60.00 bonus and that in her opinion, the salary proposal was regressive. She testified that the Respondent attempted to withdraw certain items which had been tentatively agreed to by the parties. The Respondent advised that this proposal which was submitted to the union on or about September 26, could only be accepted or rejected "in toto." On July 3, Mrs. Barrineau asked the Respondent for a counter and that its failure to do so would result in the Union's filing an unfair labor practice charge with PERC. Respondent's chief negotiator indicated that management's rights superseded employee rights except as specifically restricted by law. She testified that the only items which he considered negotiable were those items which were existing items or items which were covered by Respondent's policy. She testified that the principle area of discussion at that session dealt with grievance procedures and Dr. Moses informed the Union's negotiating team that their proposals were "so far out of line that they would not be either accepted or entertained." She testified that while the Union was willing to discuss item by item in their proposals and various counterproposals, the Employer indicated that all proposals had to be either totally accepted or rejected. The Union pressed for an informal grievance procedure and a more expeditious manner to resolve such but this was not forthcoming through negotiations.
She expressed the opinion the "in toto" position urged by the Respondent was stifling the bargaining process and in her opinion, an attempt was being made to create an impasse. Regarding maternity and sabbatical leave, the discussion surrounding those areas were more regressive and restrictive than the existing policy. 11/ She testified that the Union agreed to accept the Respondent's dormant position regarding insurance in order to enable it to put insurance bids to various carriers. The Employer took a "no give" stance on the preamble and refused to allow employees a "choice of forums to resolve grievances." The next session which was held on July 9 was, according to Mrs. Barrineau, a discussion which largely centered around grievance procedure and sabbatical leave and that in the Unions opinion, the grievance procedure advanced by Respondent was "too detailed." For a detailed discussion on the grievance procedure, see Charging Party's Exhibit 31, which is a counter dealing with grievance procedure. During the next discussion, the witness testified that she expressed concern about the absence of insurance, sabbatical leave and teacher's retirement provisions, and that this was a
subject to which the Employer refused to discuss.. The only items that the Employer would discuss were sabbatical leave and insurance. During the July 9 meeting, the Employer agreed to withdraw its insurance proposal. At the next session on July 14, the Union submitted its counterproposal no. 5, which was a regression from its earlier proposal regarding unpaid leave and grievance procedures and all other proposals were identical to its earlier submission and previously adopted position. 12/ Another session was held the following day, i.e., July 15, and the employer adopted the position of making responses only via written proposals and during that session, the Union changed its dues deduction proposal and incorporated a hold harmless clause for the Employer. Thereafter, the Union changed its position on the grievance procedure and advanced an informal one which in her opinion, provided for a more expedited procedure of resolving grievances. During that period from May 20 through mid-July, the parties had only agreed to three items. The Employer adopted a "no give" position regarding sabbatical leave. During a negotiating session on July 17, Dr. Moses appeared at the session approximately one and one-half hours late. At that meeting he submitted a counter which in essence stated that all issues which were "bargainable" had been discussed. She testified that the employer refused to submit counters on promotions, overtime, transfers, calendars, affect of class sizes and all other items.
The Employer remained adamant regarding its position that dues deductions were subject to a $.50 deduction per card per employee and that she expressed the opinion that all other deductions were not subject to a like charge and, therefore, the administration charge for dues deduction was punitive in nature. She testified that at the July 17 meeting, the Respondent submitted its counterproposals 9 and 10 and that there were no changes regarding bargainable versus nonbargainable items. The proposals contained regressive language and that employees had to specifically state the reasons for taking personal leave. There were other changes in military and professional leave which deviated from and were more restrictive than existing policies. She testified that the dues deduction pursuant to the $.50 per card charge amounted to approximately $12,450.00 for the Union. The Employer submitted a proposal whereby the instructional personnel would work an 8-hour day which had the effect of increasing the normal work day and the lunch period was reduced to 20 minutes. The proposal contained no compensation allotments for overtime work and the Employer took the position that salary supplements were not negotiable. The Employer refused to change its attitude with regard to physical examinations, mileage allowances and the collective bargaining contracts would be printed at the Union's expense. There was no movement from the initial salary proposals submitted on April 23.
During the period from July 1 through July 23, Respondent was unprepared approximately seven times and was late approximately nine times for bargaining sessions. On July 23, the Respondent submitted its counter no. 11 which changed the contract terms from one year to two years and the recognition clause also contained the provision deleting "the board and the association and added the State of Florida." On dues deduction, the employer agreed to recede from its earlier position adopted in its counter no. 10 by an amount totaling $50.00, i.e., the amount previously stated from
$12,450.00 to $12,400.00. The proposal also contained a provision that Respondent reserved the right to establish those deductions which it considered to be voluntary deductions and that said right also included the "establishment of a reasonable set deduction, if in the opinion of the board such cost is necessary." All other items were consistent with those contained in its earlier counterproposal. 13/ On July 23 the Union declared impasse which was 60 days prior to the Respondent's budget submission date. At the time of the impasse, the parties had not reached agreement on: the insurance proposal, grievance procedures, sick leave, illness in line of duty, personal leave, sabbatical leave, general leave of absence, military leave, professional leave, visitation rights, dues deduction, preamble, maternity leave, as well as others. 14/ The parties scheduled their first mediation session on August 13, and it was scheduled to begin at 4:30 p.m. At that session, the Respondent's team was late by approximately two hours. The testimony is that the dues deduction costs submitted to the mediator was for a lump sum payable by the Union of $12,400.00.
At that session, the Employer took the position that the subject of discharges was a nonnegotiable item. At the next meeting, on or about August 26, the Respondent's chief negotiator was late approximately two hours. On November 10, the Union requested a further session and Moses wired a message that he would not be available until November 15. The witness remained at the negotiating meeting on November 15 for approximately one hour and no negotiating official of Respondent appeared. The Employer remained adamant on positions wherein there was disagreement only as to language but not in principle. The parties agreed to a marathon bargaining session beginning November 28, and the sessions continued through November 30, at which time an agreement was tentatively reached by the parties, subject to ratification by the bargaining unit members. 15/ The unit members voted against ratification of Charging Party's Exhibit 46 which is the agreement entered into by the negotiating team and the Respondent's team on that same date. Included therein, is a salary proposal which amounts to a reduction in the previous school year salary of approximately 3.6 percent, i.e., $8,320.00 per annum versus
$8,266.00. The Respondent refused to accede to most proposals
submitted by the Union based on its stated claim that most were already provided for by law and thus that there was no need to incorporate such in a collective bargaining agreement. A member of the Respondent's negotiating team allegedly made the statement that "the teachers had nothing, that the school board had everything, that the school board could do what it desired regarding salaries. Additionally, it considered as nonnegotiable such matters as: dismissal, layoffs, evaluation, tenure, discipline for annual contract teachers and the scheduling of planning periods." Floating teachers, assignment of summer school teachers, problems regarding absence without leave and class size were also nonbargainable. Respondant's negotiating team also took the position that the effects of such items were also nonnegotiable. The chief spokesperson, Mrs. Barrineau, testified that her duties consisted primarily of carrying out speaking engagements regarding collective bargaining rights, effectuating collective bargaining policy for the Escambia Education Association, the certified bargaining agent, to settle disagreements within the collective bargaining team, to formulate policy, to issue news releases, to make civic speeches, to attend EEA workshops and to formulate a collective bargaining budget.
She testified that the proposals resulted from a joint effort of EEA's collective bargaining team. She became actively engaged in the formulation of proposals on or about March 1. She testified that she made approximately seven phone calls during the period June 12 through June 26, in an effort to schedule a session with Respondent. At the August 14 meeting, the Respondent presented the impasse proposals to the FMCS mediator. As of September 25, the parties reached the figure of approximately $1300.00 for the cost of deducting dues pursuant to checkoff authorizations.
Mr. Phillingem was called and testified that the file to which he earlier testified to contain Chapter 447 and the pertinent enabling statutes and the Department of Education Rules and Regulations in addition to proposals submitted by EEA, the certified bargaining agent, "blurb" sheets which are distributed and various other Union news letters. He testified that the school board's legal counsel is, to the best of his knowledge, associated with Muller & Mintz, a Miami law firm.
Wallace S. Odom, the comptroller, testified that he is responsible for maintaining all financial data with regard to the school's budget. He is charged with maintaining accurate records and during fiscal year from October 1, thru September 30, there was a county wide reduction in teacher aides by approximately 110. He testified that there was no increase in salaries based on the status of incoming revenues. He testified that there has been an
increase in the millage paid for property tax in and around Escambia County and that such increase is up to, according to his testimony, a full 8 mills.
Fred Haushalter, EEA's Executive Director, testified that he monitors correspondence which comes through his office. He testified that the allowance for dues deductions during the months of June, July and August was achieved through negotiations and that the parties stipulated as to the amount of the cost for
such deductions. He testified that the stipulation was reached on or about May 20, 1975. Thereafter during the remaining months of the school year, the parties entered into a stipulation whereby the cost of administration and dues deduction were set at a cost somewhere in the nature of $325.00 for the remaining three months. While the basic issues here can be simply stated, they are not susceptible of a short and simple answer: Did the Respondent negotiate with the Union in bad faith and with the intent of avoiding reaching agreement or conditioning agreement with the Union's acceptance of terms and conditions which the Respondent knew or should have known are unacceptable to any self respecting Union?
The governing principles need not be set forth in exhaustive detail. Section 447, F.S., (the Act) defines collective bargaining and imposes upon the parties the duty to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment or the negotiation of and agreement, or any question arising thereunder... but such obligation does not compel either party to agree to a proposal or require the making of a concession. "
The Public Employees Relations Act which was largely patterned after the National Labor Relations Act, 29 USC 151 et seq, sets forth the yard stick which is contained in Section 8(d) of the National Labor Relations Act and provides that the measurement of "good faith" is not rigid but, necessarily is an elastic concept having meaning only in its application to the particular facts of a particular case. See for example N.L.R.B. v. American National Insurance Company, 343 U.S. 395, 410 (1952). The U.S. Court of Appeals for the second circuit stated in N.L.R.B. v. National Shoes, Inc., and National Syracuse Corporation, 208F 2d. 688, 691-692 (1953), the problem is essentially to determine from the
record the intention of the state of mind of [the employer] in the matter of [his] negotiations with the Union. In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record. See also N.L.R.B. v. Reed and Prince Manufacturing Company, 205F. 2d.131, 134-135 (C.A. 1, 1953), cert. denied 346 U.S. 887 (1954). The National Labor
Relations Board has repeatedly held that it is without authority to either directly or indirectly compel concessions or otherwise set in judgement upon substantive terms of a collective bargaining agreement. A necessary corollary to this principal is that just as the Act contains no authority to force an agreement when the parties have reached an impasse (N.L.R.B. v. The United Clay Mines Corporation, 219F. 2d 120, 126 (C.A. 6, 1955), so also refusal to bargain cannot he equated with refusal to recede from an announced position advanced and maintained in good faith. Division 1142, Amalgamated Association of Street Electric Railway and Motorcoach Employees of America, AFL-CIO (Continental Bus System v. N.L.R.B., 294F. 2d 264, 266 (C.A.D.C., 1961). Applying these principles to the facts here, it becomes apparent that based on the small movement and the repeated standoffs by Respondent, I am constrained to conclude that the Respondent here has failed to fulfill its obligation to bargain in good faith with the Union.
Turning to the pertinent facts in this case, up to and including the point of "impasse", the Respondent refused to recede from its initial stand on inter alia, checkoff, seniority, grievance procedure, all types leave, assignment scheduling, shorter lunch periods, reduction in pay and longer work days. Based on this position, one would readily infer that the Respondent approached the table with a preconceived determination never to reach agreement on these issues and that it maintained this position during negotiations without doing anymore than listen to Union argument on those points. Thus, in effect it engaged in surface bargaining on those as well as other issues without any attempt to explore argument thereon with a sincere desire to reach agreement. The Respondent's chief negotiator approached the table with a cleverly concealed scheme of displaying a real and sincere attitude of negotiating which was carried on with sophistication and finesse and the mere making of concessions on some items was the very means by which he concealed a purposeful strategy to make bargaining futile or fail. Using this approach, the Respondent opened negotiations with an extremely high cost for the administration of dues deduction and then failed to recede from this position until the waining moments of the negotiating sessions and after the parties had gone through the lengthly process of calling in mediators which were costly to both parties. There was no meaningful change on its consideration of position on the mandatory subject of checkoff as provided in Section 447.303, Florida Statutes. Throughout the sessions, the Union brought out and repeated all its main arguments regarding checkoff, salary levels, scheduling assignments, grievance procedures, contract terms, health insurance coverage as well as other items which the record is replete with documentary evidence. The Respondent, according to the testimony, stood fast on various articles which
it deemed to be nonbargainable throughout the negotiation and as the sessions progressed, its position hardened. These are mandatory bargaining subjects and the Respondent's failure to enter negotiations with an effort to reach agreement constitutes bad faith bargaining in violation of 447.501(c), Florida Statutes. One example of this unlawful conduct can be examined by consideration of the fact that during the previous school year, the Respondent agreed to deduct dues on a monthly basis and the cost of such deduction amounted to approximately $325.00 for a three month period whereas when it entered the negotiation table it started out with the "outrageous" figure of approximately
$13,000.00 for the same service that it had earlier provided for a total cost of $1300.00 if projected over a one year period. The same can be said for the Respondent's adamant refusal throughout the negotiations to accede to minor language changes in the preamble and other matters which in its opinion, were matters already covered by other laws and therefore there was no need to incorporate such in a collective bargaining agreement. While not suggesting that the Act requires concession by either side during bargaining nor the surrender of convictions or alterations of philosophies provided such convictions or philosophies are not made operative in such manner as to foreclose bone fide consideration of bargainable issues, the repeated refusal to consider or counter when proposed with items which amounts to nothing more than language changes, such a position militates a finding that the employer approaches the bargaining table with the intent of reaching an agreement and/or to engage in good faith bargaining. While parties oft times approach the bargaining table and jockey for positions, there comes a time when there must be a sincere desire to reach agreement.
Further support in this position can be found in the fact that the Union on numerous occasions made futile attempts to reach the Respondent's Chief negotiator. During one period during the negotiating sessions, the Union's chief spokesman testified that she made more than ten phone calls during a twelve day period and that at no time were her calls returned by the Respondent and/or its agents. This in the opinion of the undersigned evinces a practice on the part of the Respondent to engage in dilatory and evasive tactics designed to make the bargaining process a sham and fruitless process. For example, anti-discrimination clauses are customarily included in contracts whereas there are other specific laws which specifically provide for and cover such proscribed activity. The fact that a proposal is made to include such in an agreement does not detract from or otherwise modify from other existing laws covering the same procedure. Further support for the conclusion reached by the undersigned can he found in the fact
that the Respondent's chief negotiator entered the negotiating sessions with the idea that all proposals submitted by the Respondent would be package proposals and that the Union could not accept part of a counter proposal put by the Respondent without completely accepting or rejecting the entire proposal. This is not to say that the parties cannot enter into negotiations and negotiate on an item by item basis but the adoption of an "in toto", or take it or leave it" policy is further indication of bad faith bargaining. This is of much significance here since Respondent refused to agree to insignificant or traditional items contained in collective agreements. See e.g., Big Three Industries, 201 N.L.R.B. No. 105.
Another indicia of the negotiating process which is indicative of bad faith bargaining is the fact that after the Union had been certified for approximately 6 months, the Respondent without prior consultation with the Union, unilaterally indicated that dues deductions could only be effected on a lump sum basis which ultimately had the effect of forcing numerous employees to cancel their dues deduction authorizations. This statement is based on the credited testimony of several witnesses including Mrs. Barrineau and Mr. Price. Although the Respondent, during the course of the hearing, testified that the dues deductions were canceled or that attempts were made to get employees to execute new authorization forms, there is nothing in Florida Statutes which places such a burden on the Respondent. A careful reading of Section 447.303, Florida Statutes, indicate that such authorizations are revokable at the employee's will upon
30 days written notice to both the employer and employee organization. Based on the foregoing, I therefore conclude and find that the Respondent's negotiating team entered the table with no intent to fulfill their duty to bargain in good faith and that its actions in forcing employees to execute forms which call for the single deduction of Union dues was a deliberate attempt on its part to force mass withdrawals from the Union in an effort to undermine it.
CONCLUSIONS OF LAW
Commencing on or about May 5, 1975, the Respondent, its officers, agents, and employees have engaged in surface bargaining and have attempted to undermine and circumvent its statutory obligation to bargain in good faith with the certified employee organization for its instructional personnel in violation of Section 447.501(1)(c) of the Public Employees Relations Act.
Commencing on or about October, 1975, the Respondent, its agents and employees unlawfully refused and continues to refuse to deduct dues and uniform assessments of the certified bargaining agent, all in violation of Section 447.303 of the Public Employees Relations Act.
By the acts and policy described in paragraphs 1 and 2 above, the Respondent and its agents interfered with, restrained and coerced its employees in the exercise of their rights guaranteed in Section 447.301(1)(2); and is engaging in unfair labor practices affecting the orderly and uninterrupted operation and functions of government within the meaning of Section 447.501(1)(a)
By the acts and policy described above in paragraph 1, the Respondent has refused and continues to refuse to bargain collectively in good faith with the certified bargaining agent and is thereby engaging in unfair labor practices affecting the orderly and uninterrupted operation and functions of government within the meaning of Section 447.501(1)(c) of the Act.
The activities of the Respondent described above have a close intimate and substantial relationship to the orderly and uninterrupted operation and functions of government and tend to lead to labor disputes, and destroy the harmonious and cooperative relationship between the Respondent and its employees.
The acts of the Respondent described above constitute unfair labor practices affecting the orderly end uninterrupted operation and function of government within the meaning of Section 447.501(1)(a) and (c) and 447.201 of the act.
Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the act. The unfair labor practices found include inter alia deprivation of benefits, and other reprisals for union activity, conduct calculated to impress upon employees the futility of choosing the union as bargaining representative, followed by bad-faith bargaining with that representative, all of which strikes at the fundamental purposes and objectives of the act. I shall therefore recommend a broad order.
As I have found the Respondent violated the act by its refusal to bargain in good faith with the union as the exclusive bargaining representative of its employees in the appropriate unit
described above, I will recommend that it be ordered to bargain collectively, upon request, with the Union as such representative, and, if an understanding is reached, embody such understanding in a signed agreement.
The records show that Respondent's bad-faith bargaining stems from its continued desire to delay and defeat the Union's attempts to bargain for the employees, despite its certification as bargaining agent. As approximately ten months have passed since it achieved that status by certification on April 22, 1975, by commission order number 75E-6-31, and even assuming compliance with that order, little time remains in the certification year for resumption of bargaining. Hence, I shall recommend that the certification year be extended through one year after Respondent begins bargaining in good faith. See, for example, American Steel Building Company, Inc., 208 NLRB No. 141.
RECOMMENDED ORDER
Respondent, Escambia School Board, its officers, agents shall:
cease and desist from
refusing to bargain collectively in good faith with Escambia Education Association, as the exclusive bargaining representative of Teachers employed by the Respondent.
Refusing to deduct dues pursuant to the authorization cards executed by its employees.
In any other manner coercing, threatening, and interfering with employees and the exercise of rights guaranteed to them by Section 447.301 of the Act. 16/
Take the following affirmative action, which is necessary to effectuate the policies of the Act:
Upon request, bargain collectively in good faith with the above named Union as the exclusive bargaining representative of all employees in the appropriate unit described above, and if an understanding is reached embody such understanding in a signed agreement, and recognize and deal with said Union as such exclusive bargaining agent for at least one year after the commencement of bargaining in good faith has begun pursuant to the directions of this Recommended Order.
Make whole the Union for any loss of earnings that it may have suffered by reason of Respondent's refusal to deduct dues in the manner set forth by the authorization forms which were executed by employees, and which were cancelled based on its memorandum on or about October 2, 1975, to the employees.
Preserve and, upon request, make avail- able to PERC or its agents, for examination and copying, all payroll records and all other records necessary to analyze the amount of lost dues that the Union may have incurred under the terms of this order.
Post at its school facilities in Escambia County, Florida, copies of the attached notice marked "Appendix". Copies of said notice, on forms provided by the Public Employees Relations Commission, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be maintained by it for a period to be determined by the Public Employees Relations Commission, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material.
Notify the Public Employees Relations Commission, in writing, within twenty (20) days from the date of its final order, what steps Respondent has taken to comply herewith.
DONE and ENTERED in Tallahassee, Florida this 18th day of March, 1975.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
(904) 488-9675
ENDNOTES
1/ Unless otherwise noted, all dates are in 1975.
2/ Charging Party's Exhibit 1 is a copy of the type of authorization form utilized by the Charging Party to effectuate dues deductions.
3/ Charging Party's Exhibit 2 is a copy of the letter which was given to all employees by the Respondent indicating that dues deductions would only be effectuated on a lump sum basis.
4/ Since there was no evidence that employees voluntarily cancelled their dues deductions and in view of my recommendation that the allegation that the Respondent unlawfully refused to honor dues deduction authorizations be sustained, the undersigned hereby refers this finding to the Commission for its consideration as an additional act of interference, restraint and coercion on the part of the Respondent. This type of remark is coercive because it tends to force employees to cancel their dues authorization when faced with a lump sum deduction.
5/ The spelling of this party's name is based on the phonetic sound.
6/ The above testimony is based on the credited and uncontradicted testimony of Mrs. Barrineau.
7/ See Charging Party's Exhibit 15 received in evidence and made a part hereof by reference.
8/ See Charging Party's Exhibit 20 received in evidence and made a part hereof by reference.
9/ I find the above from the credited testimony of Fred Haushalter.
10/ See Charging Party's Exhibit 22 received in evidence and made a part hereof by reference.
11/ See Charging Party's Exhibit 30, which is received in evidence and made a part hereof by reference.
12/ See Charging Party's Exhibit 33, which is received in evidence and made a part hereof by reference.
13/ See Charging Party's Exhibit 43, received in evidence and made a part hereof by reference.
14/ See Charging Party's Exhibit 45, received and made a part hereof by reference.
15/ See Charging Party's Exhibit 46, received and made a part hereof by reference.
16/ I hereby recommend that all remaining allegations in the complaint be dismissed.
COPIES FURNISHED:
Dr. E. P. Moses Chief Negotiator
Escambia County School Board 610 Madison Avenue
Alexandria, Virginia 22312
Mr. Joe Caldwell, Esquire Muller and Mintz
Room 601
100 Biscayne Boulevard, North Miami, Florida 33132
Jack L. McLean, Jr. Acting General Counsel
Public Employees Relations Commission
203 Apalachee Parkway, Suite 103 Tallahassee, Florida 32301
Gerald Williams Staff Attorney
Public Employees Relations Commission 2003 Apalachee Parkway, Suite 103
Tallahassee, Florida 32301
Richard H. Frank, Esquire Suite 500
Flagship Bank Building Tampa, Florida 33602
================================================================= AGENCY FINAL ORDER
================================================================= FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION
ESCAMBIA EDUCATION ASSOCIATION,
Charging Party,
DOAH CASE NO. 75-1791
and CASES NO. 8H-CA-754-1110
8H-CA-754-1117
SCHOOL BOARD OR ESCAMBIA 8H-CA-754-1132 COUNTY,
Respondent.
/
DECISION AND ORDER
Upon charges filed by the ESCAMBIA EDUCATION ASSOCIATION, Charging Party, the Acting General Counsel of the Public Employees Relations Commission issued a complaint in each of the cases against the SCHOOL BOARD OF ESCAMBIA COUNTY, Respondent herein.
1/ Copies of the charges, 2/ a consolidation notice and a consolidated complaint and notice of hearing were duly served on the Respondent and Charging Part. 3/ In essence, the complaints allege that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 447.501(1)(a) and (c) of Chapter 447, Part II, Florida Statutes, hereinafter the Act.
The substance of the complaint alleges that Respondent, through its officers and employees took photographs of its employees while said employees were engaged in orderly, lawful informational picketing during the month of August, 1975, thereby interfering with, restraining or coercing its employees in the exercise of their rights guaranteed in Section 447.301(1)(2) of the Act in violation of Section 447.501(1)(a) of the Act. The complaint also alleged that Respondent had engaged in and was engaging in surface bargaining and had, through the acts of its officers, agents and employees attempted to undermine and circumvent its statutory obligation to bargain in good faith, thereby violating Section 447.501(1)(c) and Section 447.501(1)(a)
of the Act. Finally, the complaint alleged that the Respondent refused to deduct the dues and uniform assessments of the Charging Party as required by Section 447.303 of the Act, thereby violating Section 447.501(1)(a) of the Act. In its answer, the Respondent denied each and every allegation of the complaint.
The cases were tried on December 1, 2, and 3, 1975, 4/ and the Hearing Officer's Report and Recommended Order was issued on March 18, 1976. Thereafter, the General Counsel filed exceptions to the Hearing Officer's Decision and a supporting brief, and the Respondent also filed a brief to the Commission, which heard oral argument by the Charging Party and by the Respondent on the issues presented by the cases. 5/
The Commission has considered the entire record, and the Hearing Officer's Report and Recommended Order in light of the exceptions and briefs and hereby adopts his findings of fact and conclusions of law 6/ recommendations, except as modified below.
Upon the record in these cases, the Commission makes the following:
FINDINGS OF FACT
Jurisdiction
The Respondent School Board of Escambia County has its principal place of business in Pensacola, Escambia County, Florida, where it is engaged in operating a public school system. Respondent is created directly by the Florida Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to public officials and/or the general electorate.
We find, on the basis of the foregoing, that the Respondent is now, and has been at all times material hereto, a public employer within the meaning of Section 447.203(2) of the Act.
A "Certification of Collective Bargaining Representative and Order to Negotiate" (Commission Order 75E-6-31), was issued on April 22, 1975, designating the Escambia Education Association as the exclusive collective bargaining representative for a unit consisting of:
All employees who are regular full-time and part-time certified classroom teachers; media specialist/librarians; teachers of excep- tional students; counselors, occupational specialists; curriculum coordinators; deans; psychologists; psychometrists; visiting teachers/social workers (but not the coordi- nator of visiting teachers) of the School Board of Escambia County.
Accordingly, we find that the Charging Party, hereinafter the Association, is now, and has been at all times material hereto, an employee organization within the meaning of Section 447.203(10) of the Act.
The Unfair Labor Practices
Refusal to Deduct Dues
Following the Association's certification by this Commission, the Respondent and the representatives of the Association met on April 23, 1975 and worked out an agreement whereby Respondent would, for the remainder of the school year, deduct dues and uniform assessments from the paychecks of those teachers authorizing such deductions. The deductions were to be made monthly, and the Association was to pay Respondent $325 for the costs of dues deductions for the remainder of the 1974-1975 school year.
On July 15 at a negotiating session, the Respondent presented to the Association a proposal for the cost of dues deduction. The proposal requested the Association to pay Respondent $12,500 annually for the costs of processing the dues deductions for the Association. At subsequent bargaining sessions, Respondent continually modified its original position, proposing minimal decreases from the $12,500 figure. However, on at least one occasion subsequent to July 15, the Respondent presented a proposal which represented an actual increase to the Association. On that occasion, the Respondent proposed to charge the Association 50 cents per month for each deduction from an employee's pay. Finally, the Respondent agreed to assess the Association 5 cents per card per month. The agreement was incorporated into a tentative agreement which ratified by the School Board but rejected by the employees in the unit.
However, when the teachers returned for the 1975-1976 school year, the parties had reached no agreement regarding the costs of
dues deductions. The Respondent had stopped deducting dues at the end of the period covered by the interim agreement, and refused to resume the withholding of the dues in the absence of a valid collective bargaining agreement. The Respondent adamantly refused to reinstate the procedures 1which were followed the last three months of the previous school year, i.e. the execution of a separate memorandum of understanding on dues deductions. To the contrary the Respondent maintained a complete unwillingness "to break its package" at the table.
Based on credible and uncontroverted evidence, the Hearing Officer found that the Employer had deducted monthly dues for the Association for at least six years prior to certification. This checkoff was based on the annual reexecution of authorization cards by employees. However, the Employer refused to follow the past practices of withholding dues. Albert Roebuck, an employee of Respondent and member of the bargaining unit testified that he had executed his annual dues authorization card in September of 1975 for the 1975-1976 school year but the Employer failed to withhold any dues from Roebuck's pay.
In early October, all teachers received memoranda in their mailboxes from the Respondent which indicated that the Respondent would deduct dues only on a lump sum annual basis. Based on this asserted policy of the Respondent, several teachers withdrew their authorization cards. After the release of the memoranda a substantial number of teachers withdrew from the Escambia Education Association. The policy adopted by the Respondent was not negotiated or discussed with the Association prior to its communicating with the employees.
Employer's Failure to Bargain in Good Faith
The Association began formulating its collective bargaining proposals in 1974, prior to the effective date of the Act. On April 23, 1975, the day after the issuance of the Certification and Order to Negotiate, the Association and the Respondent met formally. At that time, the Association presented a proposed contract consisting of 123 pages and some thirty-three articles. Testimony indicated that no contract was extant which could serve as a basis for negotiations. 7/
Respondent agreed to another meeting on May 13, 1975 and scheduled for that session the preamble and the first three articles in the Association's proposed contract. However, at the May 13 meeting Respondent presented only one counterproposal-on recognition. Negotiations proceeded on the recognition article;
and on May 20, the next bargaining session, the parties initiated the recognition article and agreed to payroll dues deduction for the remainder of the 1974-1975 school year.
Respondent's chief negotiator, Edward Moses, then required the Association to "localize" its proposals, a process that took from twelve to fifteen hours of the May 20, 28 and June 3 sessions. 8/ At the close of the June 3 meeting, Moses refused to set a date for the next negotiation session and stated that he would call the Association between June 9 and June 12 to establish the next session.
Moses did not contact officials of the Association until June
In the interim, the Association placed over 22 telephone calls to Respondent's agents and Moses' associates. Each time the Association requested that the calls be returned by Moses. On June 24, Moses called the Association office at a time when he knew or should have known 9/ that no one would be present to take his call. Moses finally contacted officials of the Association on June 25, and a series of bargaining sessions were scheduled to begin on July 1.
Thus, from May 20 until July 1, all bargaining 10/ had ceased through no fault of the Association. During all subsequent negotiation sessions, the bargaining process was hindered by several policies that were rigidly adhered to by Respondent. For example, proposals were discussed and explicated by the parties during negotiations. However, each and every suggestion for modification was considered a counterproposal and required to be in writing. 11/ Respondent refused to tentatively agree to language which was identical to counterproposals from both sides. In so refusing, Respondent continually referred to its unwillingness to "break its package."
On July 1, the parties resumed their negotiating sessions. At the outset of that meeting, Moses read a prepared statement indicating that the Respondent considered the Association's 123 page contract proposal frivolous and hastily prepared. He then, according to Jackie Barrineau, set forth those articles and sections contained in the Association's proposal that Respondent considered bargainable or non-bargainable A significant majority of the Association's proposals were considered non-bargainable, although Respondent stated a willingness to discuss their subject matter. Among the nonnegotiable items were school calendars, class size, lunch duty, filling of vacancies, promotion and transfer procedures, dismissal and layoff procedures, teacher's aides and extra time for extra duties. At no time during the
course of negotiations prior to impasse did the Respondent waiver in its definition of non-negotiability, nor did it offer to bargain about the effects of its "nonnegotiable" policies on the members of the bargaining unit.
After defining what it considered bargainable, Respondent then caucused and came back with a one page counterproposal. Its initial counterproposal, in essence, contained provisions that all offers were package offers that must be either accepted or rejected as a package; that the term of the contract would be for two years; and that the salary level would be that level paid to instructional personnel for the 1974-1975 school year. The proposal also contained provisions that all preexisting benefits would be funded at their 1974-1975 levels, that no new benefits would be instituted, that final and binding arbitration would be added as the last step to the current grievance procedure, and that all other bargainable provisions in the Association's proposal were rejected.
At this point in the July 1 session, the Association asked for the Respondent's description of the current grievance system. Moses was unable to respond at that time, so the meeting adjourned.
On July 3, the parties met again. Pursuant to the Association's earlier request, Moses described Respondent's currently existing grievance procedure to which arbitration was to be added. In fact, no formal grievance procedure of any kind was in existence, and the only informal process consisted of meetings between a teacher and his or her principal. At that meeting, also, the Association presented its counterproposal number 1, which, in essence, agreed to a two year contract if the Respondent would accept the rest of the Association's package. The Respondent rejected the Association's counterproposal, stated that it would not discuss matters until the Association moved away from its NEA package, and refused to modify its position on negotiability. The Respondent then issued its counterproposal number 2 which contained proposed language on preamble and grievance procedure. All other proposals were as contained in the initial proposal and no modification was made on the Respondent's definition of negotiable items. It became apparent that Respondent would only negotiate those items which it already provided or were required by state law.
Thereafter each of Respondent's proposals was presented as a total package. However, by consent of the parties, the question of insurance was withdrawn from the package in order for bids to
be let prior to the expiration of the old insurance contract. The Association believed Respondent's package position was stifling bargaining, which, because of Respondent's insistence on bargaining only through written proposals and counterproposals, was proceeding at snail's pace. 12/ Thereafter, the bargaining process consisted of written proposals and counterproposals isolating certain areas for discussion. The Respondent controlled the flow of materials on the table by its insistence on bringing only one or two issues up at a time. For example, at the July 7 meeting, the parties discussed, proposed and counterproposed on grievance procedures, the preamble, sabbatical leave, maternity leave and insurance. Of these, sabbatical leave and maternity leave were raised in the Respondent's counterproposal and insurance was raised by the Association. The Respondent's positions on maternity and sabbatical leaves were more restrictive than the Board's extant policies. The only disagreements remaining between the parties on preamble were on length of the contract term and the Association's proposal that the Board and Association would abide by law. This latter provision, although not uncommon in contracts, was resisted by the Respondent on the grounds that it refused to provide two forums in case of legal violations.
The parties met frequently during the month of July.
Although the record is unclear on the actual date, at some point in this period, the Association requested certain fiscal materials from the School Board and its comptroller regarding the proposed budget for 1975-1976. While the Association was not refused access to a nine hundred page document at a school meeting, the Association was not permitted to copy or adequately study the documents. The Association thereafter filed and won a suit under the Public Records Act. Copies of the documents were then transmitted to the Association 13/ under court order in September.
The next bargaining session was held on July 9 and again centered around the grievance procedure. The procedure advanced by Respondent was "too detailed." A discussion was also held on insurance, sabbatical leave and retirement provisions; but Respondent refused to discuss retirement and would only talk about sabbatical leave and insurance. It was at this session that insurance was withdrawn from discussion.
On July 14, the next session, the Association presented its counterproposal number 5, which was a regression from its earlier proposal regarding unpaid leave and grievance procedures. All other proposals were identical to those submitted earlier by the
Association - proposal number three. During this meeting, the Board issued a counterproposal on sabbatical leave, maternity leave, grievance procedure, the preamble, and military leave. Of these proposals, only military leave was new and had been raised by the Association. The Respondent's proposal on sabbatical leave was regressive in that it deleted the Respondent's obligation to pay retirement during the first month of leave.
On July 15, the Association presented a counterproposal, specifically raising the issue of dues deduction costs, length of workday, overtime, and duty free lunch periods. The Respondent countered with a proposal which increased the workday from seven and a half hours to eight hours per day. In addition, it proposed a figure of $12,500 for the cost of dues deduction.
On July 16, Moses did not appear at the opening of the session. The Association suggested a counterproposal on dues deductions, whereupon Respondent's bargaining team caucused for some five hours. Moses was present when the team returned to the table and presented a counterproposal on dues deductions which retained the $12,500 figure for dues, permitted continuous deductions without annual card resubmission, and mandated a lump sum payment from each teacher's first paycheck. The Association presented a counterproposal and requested the Respondent to counterpropose on grievance language. In its counterproposal 8-A, the Respondent submitted language on grievance procedures that was initialed by Barrineau for the Association and Moses for the Respondent. The Association then presented proposals representing movement on sabbatical leave and military leave. Respondent accepted those provisions but Moses would not sign or tentatively agree to those sections, because as Moses said to tentatively agree to separate proposals "would break his package." In addition, the Respondent countered with the Association's language on retirement and insurance during maternity leave but again refused to formally agree to its own proposal based on its package concept. During the period from May 20th to July 16th, the parties had tentatively agreed to only three items.
For the July 17 session Moses appeared approximately one and one-half hours late. At that meeting he submitted a counter which in essence stated that all "bargainable" issues had been discussed. Accordingly, the Respondent refused to submit promotions, overtime, transfers, and effects of class size. 14/ Respondent submitted its counterproposals nine and 10 at the July
17 session. Respondent's counterproposal ten was the first comprehensive counterproposal but did not affect any items which it had previously considered non-bargainable. These proposals
contained provisions on personal leave that were more restrictive than existing policies.
During these July sessions, the Employer's posture on costs of dues deductions was reduced by fifty dollars per proposal, from
$12,500 to $12,450 to $12,400. In addition, the Respondent proposed at one point a charge of 50 cents per month per card for a total charge of approximately $15,000, providing all eligible employees were dues paying members of the Association. The Association expressed a belief that these charges were punitive in that other deductions were not subject to like charges.
Thereafter, the Respondent proposed a charge of 50 cents per month per deduction to be paid by the individual employees for all other deductions, such as insurance and credit union, plus a charge in excess of $12,000 to be paid by the Association for dues deductions.
Respondent also proposed an eight hour work day and a duty- free lunch of twenty minutes Under the policies in effect at that time the regular work day was seven and one half hours; some but not all members of the bargaining unit already had duty-free lunches in excess of twenty minutes. However, some teachers had no duty-free lunch periods at all. The Respondent's proposal contained no compensation allotments for overtime work, and the Respondent took the position that salary supplements were not negotiable. The Respondent refused to change its position that physical examinations would be paid by the examinee, mileage allowances would remain at the legal minimum of 14 cents per mile, and the collective bargaining contracts would be printed at the Association's expense. There was no substantive movement from Respondent's initial salary offer.
The hearing officer specifically found that during the period from July 1 to July 23, Respondent was unprepared approximately seven times. 15/
The Association declared impasse on July 23, which was the date at which statutory impasse was reached. At the time of the impasse, the parties had not reached agreement on: the insurance proposal, sick leave, illness in line of duty, personal leave, sabbatical leave, general leave of absence, military leave, professional leave, visitation rights, dues deductions, preamble, maternity leave and others. 16/
The parties scheduled their first mediation session on August
13 and it was scheduled to begin at 4:30 p.m. Respondent's team was approximately two hours late and had prepared no summary of
Respondent's position on various items or proposal. Furthermore, Moses was absent from the entire meeting. The mediator therefore adjourned the session almost immediately. The parties met with the mediator approximately five times from August 13 to September
Three of these were extremely lengthy sessions August 27-28, September 4-5 and September 24-26. The parties had been scheduled for a mediation session on September 23, but Moses never showed up. At the September 4 session, the Respondent proposed giving the Association $75,000 for it to distribute equitably to all teachers in the school district. This proposal was in lieu of any permanent salary adjustments or other increments. Other impasse proposals were offered with no significant movement by Respondent.
From September 24-26, the parties bargained with the mediator present. During that session the parties agreed to proposals on sabbatical leave and sick leave. Early in the morning of September 26, Respondent presented its impasse counterproposal number 10, a comprehensive package touching all issues that Respondent considered negotiable. The Association was unable to accept the package and declared itself ready to go to the special master. By the afternoon of the 26th, copies of this offer had been distributed to some teachers throughout the school mail system 17/ by Respondent. All other teachers received the proposal on September 29. In this document, the Respondent regressed from positions already agreed upon with the Association. In addition, it stated that it and the Association were near agreement. On October 2, the Respondent sent out its memoranda on the lump sum dues deductions from employee paychecks. Between September 26 and October 30, two Special Masters recused themselves as prejudiced by ex parte communications received from the Respondent.
On October 23, the parties scheduled another session at the request of the second special master. At this meeting the Association presented a significantly reworked proposal which included identical language from nine of the Respondent's last proposals on particular items. Moreover, Moses refused to tentatively agree to those sections and again refused to modify his posture on the package nature of bargaining. He further stated that the Respondent's September 26 counterproposal number
10 was back on the table and refused to modify it in any way.
After an Association-imposed moratorium on negotiations, the Association sought to schedule a meeting on November 10 at 6:30
p.m. and requested a response. Receiving none, the bargaining team went to the suggested place in hopes Respondent would appear. After some wait, the Association's representatives returned to
their office where they received a telegram at 9:00 p.m. from Moses stating that he would be unavailable on November 10 but would be available on the 15th of that month. However, he conditioned his appearance on the Association's cancellation of a general meeting that he thought wad scheduled for November 15. In fact, no such meeting had been arranged. The Association agreed to meet on the 15th. They apparently went to the agreed upon place at the agreed time and waited an hour. No one from Respondent was present. However the Association later received a telegram from the Respondent cancelling the meeting.
The parties agreed to a marathon bargaining session beginning November 28 and continuing through November 30, at which time an agreement was tentatively reached by the parties, subject to ratification by the Respondent and employees of the bargaining unit. 18/ In the tentative agreement, salary was reduced by 3.6 percent. Those items which Respondent had refused to negotiate were not included in the tentative agreement. Among those items which Respondent refused to address were such matters as dismissal of unit employees, layoff, evaluation, tenure, discipline for annual contract teachers, scheduling of planning periods, floating teachers, assignment of summer school teachers, class size, and problems regarding absence without leave. In addition, Respondent steadfastly refused to negotiate the effects of such matters on members of the bargaining unit.
Although the parties had spent a majority of the time at several bargaining sessions discussing dues deductions costs at figures ranging from Respondent's possible maximum of $15,000 to its minimum offer of $12,000, both parties agreed on September 25 to a figure of $1300 for the entire year, exactly the same prorated amount as had been agreed to on May 20 for the three month interim deductions in June, July, and August.
Interference, Coercion, and Restraint through Respondent's Surveillance of the Association's Activities
On August 20, 1975, members of the Association began picketing Respondent's central office building for informational purposes only. The picketing continued for two or three days.
Prior to commencing the picketing, the Association had sought and obtained a parade permit from the City of Pensacola. The parade permit allowed the pickets to patrol on public sidewalks in front of the Respondents Principal Office so long as the pickets remained from six to ten feed apart and did not block ingress and egress to the buildings.
When the picketing commenced the Respondent's Director of Employee Relations, Dick Fillingem requested that photographs be taken of the activities at the office building. Pursuant to his direction, two photographers were dispatched to the site of the picketing. The photographers took a number of pictures that were later given to Fillingem. During the period when Respondent's agents were taking their photographs, local media photographers were also present, as well as a public relations photographer for the Association. It is uncontroverted that Respondent made photographs of the first day of picketing. It is also uncontroverted that the picketing was peaceful.
Fillingem testified that he desired the photographs for "an historical record" that he was keeping on labor relations in the Respondent's School District. He also testified that he alone had access to these pictures. However, the photographs were in fact kept in a file cabinet outside Fillingem's office to which three secretaries had access. In addition, Thomas J. LeMaster, Assistant Superintendent on Respondent's bargaining team was shown a number of the pictures. Furthermore, William McArthur, Respondent's Personnel Director, testified that he had seen the photographs on the desk of Wallace Odom, Respondent's Comptroller and also a member of Respondent's bargaining team. LeMaster testified that an additional purpose for taking the photographs was to determine if the picketers were violating the law.
Dr. Ruby Gainer testified that some eight or nine days after she had participated in the informational picketing she was shifted from administrative dean to counselor dean, a demotion in her opinion. To the contrary, the hearing officer concluded that there existed no evidence of discriminatory reprisals. We concur; the mere shift in assignment, without more, is insufficient evidence upon which to find retaliatory motives.
Every witness who had participated in the picketing testified that they feared reprisals from Respondent as the result of their lawful activities. Each stated that the presence of known and unknown agents of Respondent actively photographing their activities increased their apprehensions of potential reprisals.
19/ As stated earlier, Dr. Gainer testified that she perceived her change in assignments as retaliation for participating in the picketing. However, hearing officer found specifically:
that no attempts were made by the Respondent and/or its agents to utilize those photos for retaliation or for any other purpose unlawful under Chapter 447, Florida Statutes. The
record was barren of any evidence that the Respondent attempted to use the pictures from the pickets to substantiate retaliatory motives. While one witness testified that she was demoted because she participated in
a strike several years ago, such testimony standing alone is insufficient to base a finding that the Respondent during the picketing in 1975 utilized or planned to uti- lize the photos for some unlawful purpose.
Hearing Officer's Report at 13. 20/ DISCUSSION, ANALYSIS AND CONCLUDING FINDINGS
Respondent's Refusal to Deduct Dues
While Respondent and the Association reached an agreement on dues deductions for the months of June, July, and August at a cost to the Association of $325, no agreement had been reached between the parties as to the reasonable cost of deductions for the next school year by the end of August. Therefore, Respondent unilaterally refused to deduct dues. On October 2, 1975, it promulgated memoranda stating that, unless dues authorizations were withdrawn, it would deduct the entire amount of annual dues in one lump sum payment. As a result of this action, many members dropped their membership in the association. The Respondent did not make such lump sum deductions from the October paychecks of those members who did not withdraw.
The parties bargained over dues deductions during negotiating sessions in July and August. Respondent's offers with regard to deductions for the Association were all exorbitant, remaining approximately ten times greater than the cost established for the interim agreement being prorated on an annual basis. At one point certain members of the Respondent's negotiating team thought the parties had reached virtual agreement on dues deductions for the 1975-1976 school year, Respondent based on this supposition, had printed for distribution to the Association authorization cards reflecting the intent of the parties. However, at Moses' instigation due deductions were not discussed at that meeting.
Respondent's position shifted from 5 cents or 10 cents per card per month to 50 cents per card per month or approximately $12,000. An agreement was not reached until much later.
The Respondent claimed that it refused to deduct dues based on authorization card defects. However, it presented no credible evidence indicating that dues deductions were being made without
employee's express authorization. It thus appears that Respondent's stated concern in regard to the legality of the dues authorizations, when considered in light of its memoranda of October 2, was nothing more than a pretext to effectuate its real desire - securing mass cancellations from employees of their dues authorizations; thereby dissipating the Association majority and undermining its efforts to represent its constituency.
Furthermore, when consideration is given to Respondent's attitude while bargaining when dues deductions were in effect, the purpose and effect of Respondent's behavior cannot be ignored. By insisting on cost figures, the Respondent knew that the Association would not and could not accept, by refusing to break its package and renegotiate dues deductions separately, the Respondent frustrated every attempt of the Association to reach some agreement so as to provide continuation of the monthly dues deductions.
In its brief to the Commission, Respondent has urged as a defense to the charge that it was in no way obligated by statute, rule or prior decision of this Commission to deduct dues in the absence of a collective bargaining agreement. We need not reach this question, inasmuch as we find that Respondent's activities at the table precluded reaching any agreement prior to Respondent's discontinuation of the monthly dues deductions. Therefore, we conclude that the totality of Respondent's activities at the bargaining table wish respect to dues deductions constitutes a separate violation of Section 447.501(1)(c) 21/ of the Act in that Respondent consistently failed to bargain in good faith on dues deductions prior to impasse and the expiration of the interim agreement. In addition, we conclude that the Respondent's activities which culminated in the promulgation of its memoranda on lump sum deductions for annual dues and a mass withdrawal of membership of the Association's dues paying members constituted a violation of Section 447.501(1)(a) of the Act. 22/ In so concluding we find that such behavior constitutes a threat to Association members "thereby interfering with, restraining or coercing" the members right to form, join, and participate in any employee organization.
Refusal to Bargain
Although F.S. 447.501(1)(c) does not require a public employer to make compromises or grant concessions to an employee organization, the statute does require a public employer to negotiate in good faith with the labor organization. In determining if an employer has complied with its statutory obligations this Commission will not place primary emphasis on any
single fact, act or counterproposal which has been urged or adopted by a public employer. To the contrary, the employer's conduct at the bargaining table will be judged and considered by the totality of circumstances. If an examination of the circumstances and all of the evidence giving rise to the dispute indicates that a single act standing alone is not clear evidence of a per se refusal to bargain, the Commission will view the totality of the employer's conduct during the bargaining process.
In this case, we find on balance that the employer's conduct does not bear scrutiny under the statute. In addition to committing specific acts of bad faith bargaining, an examination of the totality of the Respondent's conduct leads to the inescapable conclusion that the Respondent conceived every scheme imaginable to avoid arriving at a collective bargaining agreement and thereby frustrated the Association's desire and obligation to represent the unit employees. By continually insisting on the right to arrogate unto itself a resolution of negotiability under
F.S. 447.501(1)(c) at the outset of the bargaining process and continuing all times thereafter, the Respondent maintained that many matters which go to the very heart of collective bargaining were beyond the scope of negotiations. The Respondent maintained throughout the negotiation that promotion, layoff, transferring of employees and the wage rates were nonnegotiable items. The Respondent's position is inconsistent with logic and all theories of industrial jurisprudence. We cannot understand how Respondent believed that any reasonable employee association could accept the limited and erroneous definition of negotiability. To accede to the Respondent's position would have reduced the status of the Association to a shell. The acceptance of Respondent's definition of negotiability by the Commission, as limited and erroneous as it was and is, would be tantamount to a vitiation of the Association's statutory rights and obligations to the members. In our opinion, to contend that the above items, which are at the core of collective bargaining, are not mandatory subjects is clear evidence of the absence of a sincere desire to resolve the differences between the parties and enter into a meaningful bargaining relationship. Consequently, it is clear that the Respondent took these unreasonable positions to prolong negotiation and to engage in marathon collective bargaining.
Additionally, the employer's constant insistence upon "total package agreement" in inconsistent with the duty to bargain.
After taking such unreasonable position, the Respondent constantly rescinded its tentative agreements on numerous proposals.
Although a revocation of a tentative agreement is not per se evidence of bad faith bargaining, any systematic and constant
revocation of tentative agreement in the absence of sufficient cause, such as changed circumstances, is inconsistent with good faith bargaining. In this case on numerous occasions the parties retreated from the bargaining table, justifiably, under the impression that certain matters had been resolved tentatively, only to meet for the next session and discover that the Respondent had retracted from its previous position. Throughout the hearing both before the Hearing Officer and the Commission, the Respondent offered no reason, certainly not a plausible reason for its constant change with respect to agreed upon matters. In our opinion such conduct cannot be tolerated. As stated by the National Labor Relations Board in the Gerstenslager Company, 202 NLRB 218 (1973) in which the Board held:
"...I find that the Respondent's wholesale abrogation without good cause of agreement or tentative agreement, to such provisions painstakingly .... was intended to and did broaden instead of narrow the area of dis- agreement, and was therefore inconsistent with a genuine desire to resolve differences between the parties." 202 NLRB at 225.
Additionally, we find that the Respondent refused to bargain by failing to provide the Association with relevant information during the bargaining process. On several occasions the Association requested certain documents from the Respondent, and advised Respondent that such materials were necessary to intelligently formulate the Association bargaining strategy. It has long been established in other jurisdictions that employee organizations are entitled to certain information from employers if the information is readily available to the employer or is within the exclusive possession of the employer. See General Electric Company 192 NLRB 68 (1971). Although the position of the Board is not binding on this Commission, we finally conclude that the NLRB's position is rational and persuasive in this case. In our opinion there are some valid reasons for requiring employers to supply relevant information to the Association. Additionally, it should be noted that the relevancy and necessity of the information is not to be determined by an employer. The Association need only demonstrate that the information requested is helpful during the negotiating process. The rationale for the rule is best articulated by the Michigan Employment Relations Commission in Saginaw Township Board of Education, 1970 MERC Lab. Op. 127. In that case the Michigan Commission observed:
". . . It is clear that in the field of public employment much of the information is in the public domain. Records of public employers such as school boards, in the absence of specific statutes, would not enjoy immunity from public scrutiny."
The rationale as stated by MERC is much more compelling in this case. Not only is there an absence of a Florida statute immunizing the requested information from public scrutiny, the documents sought by the Association are public records within the meaning of Chapter 119 of the Florida Statutes.
Furthermore, the employer's constant failure to attend scheduled meetings and constant late arrivals tell a compelling story with respect to revealing Respondent's true intent. The habitual lateness and failure to appear was designed to frustrate and undermind the Association's attempt and ability to represent the unit employees. Similarly, Respondent's circulating proposals to bargaining unit employees prior to presenting them to the organization is clear evidence of bad faith bargaining. In our opinion, Respondent was engaging in a course of conduct to dissipate the majority status of the Association and dilute the Association's ability to represent the members. Such action was designed to create the impression in the minds of the employees that Respondent had an absolute right to dictate any and all provisions to be included in a new labor agreement.
Finally the Respondent's position with respect to the dues deduction was not consistent with good faith bargaining. The proposals insisting that the organization agree to pay such exaggerated and unreasonable sums as from $12,000 to $15,000 per year were so unreasonable as to constitute evidence of bad faith bargaining. We cannot imagine how Respondent realistically believed that $12,000 - $15,000 per year constituted the reasonable cost for deducting and remitting the dues to the Association. Moreover, the Respondent's unilateral decision to withhold the yearly dues from one pay check of the employees is evidence of bad faith bargaining.
For the above reasons we find and conclude that many of the singular acts of Respondent referred to above constituted bad faith bargaining. Moreover, in viewing the Respondent's conduct in its entirety, we find and conclude that the employer violated F.S. 447.501(1)(c).
Interference, Restraint and Coercion by Respondent's Surveillance of Union Activities
The charge and complaint in regard to this issue alleged that Respondent by and through its agents and employees unlawfully engaged in surveillance of the protected activities of its employees, thereby violating Section 447.501(1)(a) of the Act in that such activities inherently interfere with, restrain, and coerce employees in the exercise of their rights to engage in collective and union activities. While the Hearing Officer concluded that the Respondent did not commit an unlawful act by photographing peaceful informational picketing sponsored and conducted by the Association and its members, we disagree.
The National Labor Relations Board, from its inception has consistently held that photographic surveillance of employees engaged in lawful union activity by an employer or its agents is coercive and a violation of Section 8(a)(1) of the National Labor Relations Act, as amended. 23/ The federal courts have been equally consistent in affirming the Board's decisions on these matters. NLRB v. Associated Naval Architects, 355 F.2d 788 (4th Cir. Ct. App. 1966); NLRB v. Rybolt Heater Co., 408 F.2d 888 (6th Cir. Ct. App. 1969); NLRB v. Preston Feed Corp., 309 F.2d 346 (4th Cir. Ct. App. 1962). The law was well stated in Matlock Truck Body and Trailer Corp., 217 NLRB No. 60 (April 16, 1975):
'Few propositions are more firmly embedded in the law of labor relations than that an employer who spies upon the union activities of his employees engages a flagrant violation of the rights guaranteed by Section 7 of the Act. Such conduct has been condemned by the Board and the courts since the early days of the Act, for experience has shown that employers resort to labor espionage or surveillance for the purpose of obstructing or destroying employees' self-organizational rights and activities. If such first steps leading to discriminatory practices are out- lawed, the commission of other unfair labor practices may be thwarted. Surveil-
lance is unlawful regardless of the em- ployer's good faith or whether there is proof that any employees were intimidated or coerced thereby. Thus, photographing the activities of striking employees constitutes
unlawful surveillance absent any legitimate purpose for taking the pictures.
See Wallace Press Inc., 146 NLRB 1236 (1964); Kingwood Mining Co., 166 NLRB 957 (1967); enf'd 404 F.2d 348 (4th Cir. Ct. App. 1968);
Premier Worsted Mills, 85 NLRB 985 (1949); Russell Sportswear
Corp., 197 NLRB 1116 (1972).
While the law permits photographic surveillance for a legitimate purpose, the only exception that has been recognized is where the pictures are taken for later use in court. As the Sixth Circuit Court of Appeals recognized in Larand Leisurelies v. NLRB 523 F.2d 814, (1975),
Photographing of pickets does not violate Section 8(a)(1) of the [NLRB] where the photographs are taken to establish for pur- poses of an injunction suit that pickets engaged in violence. Stark Ceramics, Inc., 155 NLRB 1258, enf'd 375 F.2d 202 (6th Cir.
Ct. App. 1967). However, if no photographs are introduced into evidence in the injunction proceeding, it may be inferred that the photographing was not intended for a valid purpose, but, on the contrary was intended
to interfere with the activity protected by Section 7 of the [NLRA].
In the instant case, Association members were engaged in peaceful protected activity in their informational picketing. The Respondent never procured or attempted to procure any injunctive relief against the picketing. At no time did the Respondent utilize the photographs for any legitimate purpose. Indeed, the only public use of the pictures was their private display to school board members at a public meeting.
We find the proposition in regard to photographic surveillance to be "so well embedded in labor relations law," as to be not only persuasive but irrebuttable. Accordingly, we find that photographic surveillance is inherently coercive and may be permitted only where an employer demonstrates beyond doubt that it had a legitimate purpose in its photography.
We therefore conclude that the Hearing Officer erred in concluding that the Respondent did not engage in activity which violated Section 447.501(1)(a) of the Act.
CONCLUSIONS OF LAW
The Commission, on the basis of the foregoing facts and its analysis of the entire record, makes the following conclusions of law:
The School Board of Escambia County is a public employer within the meaning of Section 447.203(2) of the Act
Since April 22, 1975, the Escambia County Education Association has been and is now the certified and exclusive representative of all of Respondent's employees in the appropriate unit, hereinafter set forth, for the purpose of collective bargaining within the meaning of Section 447.307(1) of the Act. The collective bargaining unit referred to herein consists of:
INCLUDED: All employees who are regular full-time and part-time certified classroom teachers; media specialist/librarians;
teachers of exceptional students; counselors; occupation specialists; curriculum coordina- tors; deans; psychologists; psychometrists; visiting teachers/social workers (but not the coordinator of visiting teachers) of the School Board of Escambia County, Florida.
EXCLUDED: All regular full-time and part-time employees who are civil service classified personnel, such as secretaries, clerks, building maintenance, food service personnel, and the following confidential and/or mana- gerial status personnel: superintendent, deputy superintendent; assistant superinten- dent, director, assistant director, super- visors, coordinators, principals, assistant principals, specialists, coordinator of visiting teachers, and other employees of
the School Board of Escambia County, Florida.
The Respondent School Board of Escambia County by refusing to bargain in good faith on dues deductions and by threatening its employees with one lump sum deduction, thereby instigating mass withdrawals of members from the Charging Party Escambia Education Association has engaged in and continues to engage in unfair labor practices within the meaning of Sections 447.501(1)(a) and (c) of the Act.
Respondent School Board of Escambia County, by engaging in surface bargaining throughout material herein has engaged in unfair labor practices within the meaning of Section 447.501(1)(c) and by such conduct Respondent interfered with, restrained and coerced its public employees in violation of Section 447.501(1)(a) of the Act.
Respondent School Board of Escambia County by its photographic surveillance of the lawful union activities of the Association and its members has engaged in unfair labor practices within the meaning of Section 447.501(1)(a) of the Act.
REMEDIES
The Commission, having found substantial evidence that unfair labor practices have occurred, is required by Fla. Stat. Section 447.503(4)(a) to issue a cease and desist order and take such positive action as will effectuate the policies and purposes of the Act.
Having found that Respondent engaged in certain unfair labor practices in violation of Section 447.501(1)(a) and (c) of the Act, we shall order that it cease and desist therefrom and that it take certain affirmative actions set forth below to effectuate the policies of the Act.
We shall order Respondent, upon request of the Association, to forthwith reinstitute dues deductions at a cost to the Association which the parties herein have twice found to be reasonable, i.e. 5 cents per card per month, until such time as changed circumstances mandate a renegotiation of the reasonable cost of dues deductions.
We shall also order that, upon request of the Association, the Respondent shall resume collective bargaining with the Escambia Education Association concerning wages, hours, and terms and conditions of employment until the Respondent and the Association have negotiated in good faith to agreement or to a bona fide impasse thereon.
ORDER
Pursuant to Fla. Stat. Section 447.503(4)(a) of the Act the Florida Public Employees Relations Commission hereby ORDERS that Respondent School Board of Escambia County shall:
Cease and desist from:
Failure or refusal to bargain collec- tively in good faith with the Escambia Edu- cation Association as the exclusive collective bargaining representative of employees in the appropriate unit described below, concerning rates of pay, wages, hours of work, and other terms and conditions of employment, by refusing permission for the Association to conduct its own time study, by dealing directly with employees in the unit and bypassing the Association, and by abrogating agreements and proposing more stringent provisions without reasonable cause, or in any other manner refusing to bargain in good faith with the Association.
Photographing or otherwise engaging in surveillance of its employees while they are engaged in activities protected under the Act.
Interfering with, restraining, or coercing its employees by refusing to deduct dues in a reasonable fashion and further refusing to bargain in good faith over the reasonable costs of such dues deductions.
In any like or related matter interfering with, restraining or coercing its employees
in the exercise of the rights guaranteed under the Act.
Take such affirmative action as we deem necessary to effectuate the purposes of the Act:
Upon request of the Association, forth- with reinstitute dues deductions at a cost
to the Association which the parties herein have twice found to be reasonable, i.e. 5 cents per card per month, until such time as changed circumstances mandate a renegotiation of the reasonable cost of dues deductions.
Upon request of the Association, resume collective bargaining with the Association as the exclusive collective bargaining represen- tative of all the employees in the following unit:
INCLUDED: All employees who are regular full time and part-time certified classroom teachers; media specialist/librarians; teachers of exceptional students; counselors, occupation specialists; curriculum coordi- nators; deans; psychologists; psychometrists; visiting teachers/social workers (but not the coordinator of visiting teachers) of the School Board of Escambia County, Florida.
EXCLUDED: All regular full-time and part-time employees who are civil service classified personnel, such as secretaries, clerks, building maintenance, food service personnel, and the following confidential and/or mana- gerial status personnel: superintendent, deputy superintendent; assistant superin- tendent; director, assistant director, super- visors, coordinators, principals, assistant principals, specialists, coordinator of visiting teachers, and other employees of
the School Board of Escambia County, Florida.
concerning wages, hours, and terms and conditions of employment until the Respondent and the Association have negotiated in good faith to agreement or to a bona fide impasse thereon.
ORDERED this 8th day of April, 1976 in Orlando, Florida. ISSUED this 13th day of May, 1976 in Tallahassee, Florida.
For and By the Direction of the Public Employees Relations Commission
CURTIS L. MACK CHAIRMAN
ENDNOTES
1/ An investigation was conducted by a PERC agent pursuant Section 447.503(1), F.S., and Section 8H-4.02(a) of the Commission Rules and Regulations. Thereafter the complaint was issued by the Acting General Counsel pursuant to Section 8H-4.03 of the Commission Rules and Regulations.
2/ The Charge in Case No. 8H-CA-754-1110 was filed on September 10, 1975. The Charge in Case No. 8H-CA-754-1117 was filed on September 17, 1975, while the Charge in Case No. 8H-CA-754-1132 was filed on September 29, 1975. Copies of all charges were served on the Respondent by the Acting General Counsel on October 14, 1975. Except as otherwise noted all dates referred to herein occurred in 1975.
3/ Pursuant to Section 8H-4.09 of the Commission Rules and Regulations, the cases were consolidated and the complaints were issued and served on October 16, 1975.
4/ On October 16th, the parties were notified that a hearing would be held pursuant to Fla. Stat. Section 447.503(3)(a)(1975) and Sections 8H-4.03, 4.08 and 4.10 of the Commission Rules and Regulations. After a continuance, such a hearing was held on December 1, 2 and 3, 1975 before a Hearing Officer from the Division of Administrative Hearings. At the hearing, the parties were afforded the opportunity to appear, to examine and cross examine witnesses and to introduce relevant evidence.
5/ On March 19, 1976, the parties were notified that a hearing would be held pursuant to Fla. Stat. Section 447.503(4) (1975) and Section 8H-4.17 of the Commission Rules and Regulations. The scheduled hearing was continued and, on April 8, 1976, was held before the Public Employees Relations Commission. At this hearing, both parties were afforded the opportunity to appear and present oral argument in support of their positions.
6/ Commissioners Stouffer and Gitomer would not find on this record that the Respondent had no legitimate purpose in photographing the pickets and would therefore adopt the Hearing Officer's conclusion that Respondent did not violate Section 447.501(1)(a) by virtue of such photography. In addition, Commissioner Stouffer would not find that the Respondent's bargaining tactics constituted surface bargaining in violation of Section 447.501(1)(c)
7/ Although the Hearing Officer found that the procedure that Charging Party in formulating proposals "was of past practice when [sic] the employee organization had utilized in negotiating prior contracts," the record as a whole does not support finding a previously existing collective bargaining relationship resulting in contract negotiations between these parties. Nevertheless, this inaccuracy in no way affects our final disposition of this matter.
8/ In Respondent's terminology "localizing" apparently means one party's answering of questions posed by the other party who refuses to answer counter questions.
9/ The Association's representatives had called Moses' office on June 23 and informed a secretary that they would not be in their office until 1:00 p.m. on the 24th. Moses called the Association at 10:00 a.m.
10/ Respondent, during "localizing" had stated that it would respond to the Association "when bargaining began.
11/ On April 11, the parties had agreed to "guidelines for negotiations," as follows:
The site of the meeting shall be at Woodham High School.
The time of the meeting shall be 6:30 to 9:30. Adjournment time may be extended by mutual agreement.
Date and agenda of meetings shall be established at the close of each meeting for the following meeting.
Length of caucus shall be 30 minutes maximum.
Each tentative agreement shall be reduced to writing. The chief negotiator for each team shall sign four copies, and each team shall retain two copies.
All proposals and counter proposals shall be presented in written form.
The association shall present its entire package at the first negotiating session. Both parties reserve the right to make counterproposals to proposals submitted by either team. . . .
Both parties carry the authority to make agreements and reach compromises subject to the final ratifications of its [sic] empowering bodies.
These guidelines may be amended by mutual consent of the parties.
The Respondent made unilateral changes in these guidelines through the sessions. For example, Respondent refused to establish a date and agenda for any subsequent sessions at the June 3 meeting. Respondent's initial caucuses frequently lasted well over 30 minutes, although both parties would occasionally caucus for hours during the sessions. In addition, Respondent did not provide the Association with counterproposals at the opening of the sessions at which it was obligated to go first but would caucus and present handwritten proposals.
Another ground rule of the negotiations apparently was tacitly consented to by Respondent. That mandated the recapitulation of each separate section of a proposal in every
counterproposal thereafter. If not mentioned in a counterproposal, a proposal was to be considered withdrawn by the party making it.
12/ In addition to responding only to written proposals, Respondent also was late to a majority of sessions, immediately caucused when it was its turn to present the first proposal, and occasionally refused to make any proposals in Moses' absence.
13/ Nothing in the record indicates that this material was formally requested at the bargaining table. However, the failure of Respondent to abide by the Public Records Act is indicative of a state of mind prevailing throughout the negotiations.
14/ Although the Hearing Officer found that Barrineau testified to the Respondent's refusal to submit counters on all other items, she in fact testified that the Respondent refused to modify its original counterproposals or its definition of bargainable subjects.
15/ The hearing officer also found that Respondent was late approximately nine times. In fact, the record reflects tardiness at four of nine meetings.
16/ Although the hearing officer found that no agreement had been reached on grievance procedures, on July 16 the parties had agreed to an initialed Respondent's counterproposal 8-A on grievances.
17/ Moses had also contacted two radio stations and stated that the Association had flatly refused to consider Respondent's offer. Although the testimony is not overwhelming on this point, it appears that these calls were made prior to the presentation of impasse counterproposal number 10 at the bargaining table.
18/ Although the School Board approved the contract, a majority of bargaining unit members refused to ratify the contract.
19/ Jack Bridges, the photographer who was known to the picketers testified that he spent 10 to 15 minutes on August 20 photographing the picketers. The other photographer was not called, nor was there any evidence as to the amount of time the second photographer spent taking pictures.
20/ The Hearing Officer also found that "there is no evidence to show that the Respondent treated picketing employees any differently than it did any other employees who engaged in the stride following the time the photos were taken." Hearing
Officer's report at 13. However, an examination of the record reveals no evidence whatsoever that the Association or its members had engaged in any strike or walk out subsequent to 1968.
21/ Fla. Stat. Section 447.501(1)(c) provides in part:
Public employers or their agents or representatives are prohibited from:
Refusing to bargain collectively, failing to bargain collectively in
good faith . . . with the certified bargaining agent for the public employees in the bargaining unit.
22/ Fla. Stat. Section 447.501(1)(a) provides:
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 Act.
23/ Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Section 158(a)(1) provides:
It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7.
Compare Fla. Stat. Section 447.501(1)(a).
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1990 | Final Order filed. |
| Mar. 18, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 13, 1976 | Agency Final Order | |
| Mar. 18, 1976 | Recommended Order | Respondent didn't bargain collectively with Petitioner and did not bargain in good faith. Recommend cease/desist from its bad faith practices. |
CITY OF WINTER HAVEN vs. TEAMSTER`S UNION, LOCAL NO. 444, 75-001791 (1975)
AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL vs. ORANGE COUNTY SCHOOL BOARD, 75-001791 (1975)
DUVAL COUNTY SCHOOL BOARD vs. DUVAL TEACHERS UNITED, FEA-FT AFL-CIO, 75-001791 (1975)
SEMINOLE COUNTY SCHOOL BOARD vs DOUGLAS PORTER, 75-001791 (1975)
