vs. ) CASE NO. 76-443
) PERC NO. 8H-CA-753-0155
Respondent. )
Pursuant to notice, a hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, on May 6, 1976, at Room 359, 1350 Northwest 12th Avenue, Miami, Florida, and on June 3, 1976, at 2171 Northwest 22nd Court, Miami, Florida.
For Petitioner: Thomas W. Brooks, Esquire
For Charging Robert A. Sugarman, Esquire
Party: Kaplan, Dorsey, Sicking & Hessen, P.A. Post Office Drawer 520337
For Respondent: Edward N. Moore, Esquire
The Charging Party is now, and has been at all times material herein, an employee organization within the meaning of Chapter 447.203(10), Florida Statutes. The Charging Party was certified by the Public Employees Relations Commission on February 4, 1975.
At all times material herein Jack Present, was the City Manager of the Respondent, the City of South Miami, Florida and was an agent of the Respondent,
acting in its behalf, and/or a managerial employee within the meaning of Chapter 447.203(4) Florida Statutes.
The Respondent is now, and has been at all times material herein a public employer within the meaning of Chapter 447.203 (2) Florida Statutes and has as its principal 1ace of business located in Dade County, Florida, where it is engaged in the business of operating a municipality. The Respondent is created directly by the Florida State 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 or to the general electorate.
During the course of contact between the Charging Party and the Respondent, a charge of unfair labor practices was brought by the Charging Party on October 30, 1975, and was served on the Respondent on October 29, 1975, as shown in PERC Exhibit #1A, admitted into evidence. This charge has been withdrawn by the Public Employees Relations Commission. Subsequent to October 30, 1975, an amended charge was filed by the Charging Party dated January 10, 1976, and was served on the Respondent on January 9, 1976, and this amended charge is PERC Exhibit #1B, admitted into evidence. A second amended charge was filed by the Charging Party on January 12, 1976, and was served on the Respondent on January 12, 1976, and this charge is PERC Exhibit #10, admitted into evidence. Pursuant to Chapter 447.503(3)(a), Florida Statutes, and Chapter 8H-4.03, Florida Administrative Code, the Public Employees Relations Commission issued a complaint and notice of hearing. A copy of the original complaint and notice of hearing for May 6, 1976, at 9:00 A.M., Room 358, State of Florida Office Building, 1350 Northwest 12th Avenue, Miami, Florida is PERC Exhibit #1, admitted into evidence. This exhibit shows some amendments which were offered in the course of the hearing on May 6, 1976; however, the final statement of amendment to the complaint was by an amended complaint and notice of hearing to be held on June 3, 1976, at 9:00 A. M. in Room 360, State Office Building, 1350 Northwest 12th Avenue, Miami, Florida. A copy of the amended complaint and notice of hearing is Hearing Officer's Exhibit #1, an exhibit admitted subsequent to the hearing.
After the parties began to negotiate on May 14, 1975, the Charging Party submitted a set of contract proposals to the Respondent. A copy of this set of Contract proposals is PERC Exhibit #3, admitted into evidence. One of the articles in these proposals was Article #5 pertaining to dues check off. This article did not make mention of the Respondent charging a fee for providing services for this check off. Later on July 29, 1975, a formal request was made of the Respondent that it deduct fees and dues for the authorized employees of the Charging Party. In that same month of July, 1975, the City of South Miami submitted its own proposals for contract, which is FREE Exhibit #7, admitted into evidence. The management proposal also contains an Article #5, containing dues check off, which does not carry with it a request for payment of a fee to the City for the implementation of such a dues check off system. On September 1, 1975, because of certain disagreements, the parties appeared before a special master in accordance with Chapter 447.403, Florida Statutes. At the special master's hearing, the question of dues check off was considered. The City of South Miami presented an addendum to the previously agreed upon Article #5, which addendum requested that the union pay for the services for any dues check off service performed by the City. This addendum was rejected by the special master and a recommendation was made that the parties may wish to consider renegotiating the Article #5 on dues check off. Statement of the Special Master's position is found in PERC Exhibit #4, admitted into evidence, which is a copy of the Special Master's Report and is specifically found on page 3 of
that document. On November 13, 1975, at a negotiating session for purposes of finalizing the contract agreement, further demand was made by the Charging Party that the City implement a dues check off system. PERC Exhibit #2, admitted into evidence, which is a copy of the proposed agreement entered into by Mr. Jack Present, a negotiator for the Respondent, has within it an Article #5 pertaining to dues checkoff. That article does not contain a clause on reimbursement to the City for services rendered in the dues check off system. This agreement was the consummation of the efforts of the session of November 13, 1975, and therefore gives an accurate account of agreement on the check off question.
Nonetheless, a dues check off system has not been implemented by the City of South Miami at the time of the hearing before the undersigned.
While the negotiations were underway the Respondent was in the process of designing new personnel rules and the initial draft of those rules came out on July 29, 1975. The copy of those proposed rules, as they were passed on March 2, 1976, is Respondent's Exhibit #1, admitted into evidence. It is the testimony of the City of South Miami witnesses, that mention had been made in negotiations with the Charging Party about the proposed rules, prior to the draft of July 29, 1976. They further stated that these initial drafts were given to the Charging Party in August, 1975. It was the understanding of the Respondent, that the proposed rules would be the basis for any contract agreement with the Charging Party. The recollection of the witnesses of the Charging Party was to the effect that the proposed rules were afforded to them on September 11, 1975, the date of the special master's hearing. In their mind, these proposed rules were only given as a matter of background and were not indicated as effective in the negotiations. The proposed rules are in conflict with the contract proposals recommended by the Charging Party in PERC Exhibit #3 and this supports the theory that the Charging Party was not considering the utilization of the proposed personnel rules when it made its initial proposal of agreement to the Respondent. This document is followed by the agreement between the City of South Miami and the Charging Party as negotiated by the representatives of those parties with its attendant introductory correspondence of November 14, 1975. It states in its Articles 19, 20, 22, 23, and 24 that the personnel rules contemplated by the agreement are those rules currently in effect. Again, this contract refers to PERC Exhibit #2. The statement found in those articles refer to current policy and the current policies are stated in the then personnel rules. On November 14, 1975, the personnel rules in effect here as shown by PERC Exhibit #6, admitted into evidence. these rules varied in content from the set of rules finally passed by the City of South Miami, City Council, on March 2, 1976.
Both of the sets of personnel rules were introduced at the special master's hearing, as Exhibit #B1 for the current personnel rules as of that date and Exhibit #B2 for the proposed personnel regulations; however, no further comment is made by the Special Master Report as to what rules would have application in any agreement entered into by tie parties. On November 4, 1975, the City Council of the City of South Miami met to consider the impasse articles which were brought before the special master, and on that date no mention was made of which personnel rules would have application The next order of events after November 4, 1975, was the meating of November 13, 1975 held by the parties to consider the finalization of the contract. On December 2, 1975, the City Council considered the passage of the agreement reached between the negotiators of the Charging Party and the Respondent. At that time, members of the council expressed the opinion that the proposed personnel rules would be the rules involved in any contract negotiation and felt that failure to include such changes as shown in the proposed personnel regulations would cause problems in their accepting the agreement between the parties. The City Manager as a
negotiator for the Respondent was directed to verify the position of the Charging Party on the question of which personnel rules would be in effect. On December 17, 1975, a meeting was held between the parties and discussion was conducted about which personnel rules would apply. The Charging Party was concerned that it not enter into an agreement to implement rules which had not been finally passed by the City Council and they felt the existing personnel rules would have application. On January 5, 1976, a further workshop meeting was held to consider the proposed personnel rules and the Charging Party indicated that those personnel rules were not acceptable and indicated that they would not negotiate further on those matters. The position of the City of South Miami on January 5, 1976, was that the implementation of the proposed personnel rules was a matter of strong concern for the City, to the extent that any contract agreement which failed to implement those rules would be in serious jeopardy. On January 6, 1975, the full City Council met and voted to reject the agreement entered by its representative and the Charging Party. This vote was by resolution which directed that its City Manager, as negotiator, further negotiate beyond the agreement which they rejected. This resolution is found as Respondent's Exhibit #6 admitted into evidence.
Another item considered in the complaint pertains to the statements of paragraphs 5 through 10 of that complaint. The items set forth in those paragraphs were addressed as impasse subjects in the Special Master's Hearing on September 11, 1975. The recommendation of the special master on the subject of that impasse article #29, Section 9d(ii) is found on page 9 of the Special Master's report. In the November 4, 1975, public meeting to consider the impasse items, the City Council voted to accept the Special Master's recommendation on Section 9d(ii). Likewise, in considering the recommendation of the Special Master on Article #29, Section 9d(iv) at page 10 of the Special Master's report, the City Council accepted the Special Master's recommendation with the addition of the words "except for emergencies", which was added at the end of the Special Master's recommendation. Finally, in considering impasse Article #43, Section 10(c), of the Special Master's recommendation on that article, found at page 10 of the Special Master's report, the City Council voted to approve his recommendation with the modification which stated, "unless it becomes necessary to change the hours because of an emergency, it may do so." A tape was made of this meeting of November 4, 1975. After listening to Respondent's Exhibit #7, admitted into evidence after the hearing, there is evidently a great deal of confusion by the City Council about their votes on the impasse articles; however, the tape clearly demonstrates their approval of the three sections previously referred to, with the subjet modification.
At the December 2, 1975, meeting of the full council of the City of South Miami, there was some question in the minds of the members of the council about their vote on the impasse items of November 4, 1975. Furthermore at the December 16, 1975, meeting of the full council there was still some question about the impasse articles. Respondent's Exhibit #4, minutes on that meeting, indicates that members of the council felt that the impasse articles of the Special Master that had been voted on, which were found in Article #29 through #31 of the proposed contract (PERC Exhibit #2), should be stricken. These comments on Article #29 through #31 were given as instructions to the City Manager for his negotiating session of December 17, 1975, which has previously been discussed. At the meeting of December 17, 1975, mention was made of the continuing distress that the City Council members had over some of these articles referred to. This mention was made, notwithstanding the City Attorney' s assurance to the Charging Party that he had advised the council that they could not overturn their agreement on impasse articles. This was followed on
January 6, 1976, by the vote of the full council to reject the proposed agreement negotiated by the City Manager.
On December 2, 1975, at a regular meeting, the City Council passed Resolution 134-75-3362, which appropriated the amount of $900 for the purpose of purchasing turkeys for each and every employee of the City of South Miami. Minutes on this item are found in Respondent's Exhibit 63, admitted into evidence. Payment for the turkeys was made from operating funds of the Mayor and members of the City Council, and these funds are an independent line item of the budget. They are subject to be utilized by the Mayor and other members of the City Council as deemed appropriate by those persons. This action was taken subsequent to a statement by the Respondent at the Special Master's Hearing of September 11, to the effect that wage demands by the Charging Party could not be met because the budget from October 1, 1975 to September 30, 1976, for the City of South Miami, had been passed and could not be changed to meet those demands during the negotiating period. A full explanation of this statement is found ill the Special Master's Report, PERU Exhibit #4
At present negotiations between the Respondent and Charging Party have been discontinued.
CONCLUSIONS OF LAW
Notices of Hearing for hearings on May 6, 1976 and June 6, 1976 were sufficient. The undersinged has jurisdiction to consider the complaint filed for hearing on May 6, 1976 the amended complaint filed for hearing on June 3, 1976.
The Respondent, through its counsel, moved for a directed verdict on those allegations as set forth in the amended complaint. The motion is denied.
In view of the facts as established, by refusing to deduct the dues and uniform assessments by the Charging Party as provided in Chapter 447.303, Florida Statutes, the Respondent has interfered with, restrained and coerced, and is interfering, with, restraining and coercing employees in the exercise of their rights guaranteed by Chapter 447.301(1)(a), Florida Statutes. By that, the Respondent has engaged in and is engaging in, unfair labor practices affecting the orderly and uninterrupted operations of the government within the meaning of Chapter 447.501(1)(a), Florida Statutes. In view of the facts as established, the Respondent at its January 6, 1976 council meeting rejected the proposed contract agreement of November 14, 1975, PERC Exhibit #2, in its entirety, which contract contained previously agreed upon aspects of impasse article #29 and #43 of the Special Master's Report, as voted upon on November 4, 1976. By such vote, Respondent did interfere with, restrain and coerce, and is interfering with, restraining and coercing its employees in their rights guaranteed in Chapter 447.301(1)(a), Florida Statutes, and thereby engaged in and is engaging in unfair labor practices affecting the orderly and uninterrupted functions of government within the meaning of Chapter 447.501(1)(a), Florida Statutes. By its acts as established in the facts, commencing on or about December 2, 1975, and continuing thereafter, the Respondent, by conditioning the approval of the proposed agreement of November 14, 1975, on the acceptance of the then proposed personnel rules as an element of the contract which rules became effective March 2, 1976; did interfere with, restrain and coerce and is interfering which rules became effective March 2, 1976; did interfere with, restrain and coerce and is interfering with, restraining and coercing its employees in the exercise of their rights guaranteed in Chapter 447.301(1)(a), Florida Statutes, and did thereby engage in
and is engaging in unfair labor practices of affecting the orderly and uninterrupted functions of government within the meaning of Chapter 447.501(1)(a), Florida Statutes. By its actions on or about December 2, 1975, at a regularly scheduled council meeting the Respondent unilaterally altered the wages, hours and/or terms of conditions of employment of members of the bargaining unit represented by the Charging Party by appropriating $900 for the purpose of purchasing Christmas turkeys, for all City employees without consultation or bargaining with the Charging Party. This aforementioned act together with the act of having represented to the Charging Party during negotiations at the point of the Special Master's Hearing that the Respondent was prevented from granting further economic benefits to its employees; establishes that the Respondent did interfere with, restrain and coerce, and is interfering with, restraining and coercing its employees in their exercise of their rights guaranteed in Chapter 447.301(1)(a), Florida Statutes, and did thereby engage in and is engaging in, unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Chapter 447.501(1)(a), Florida Statutes.
By its action on or about January 6, at a regularly scheduled council meeting, in which the Respondent rejected a proposed agreement of November 14, 1975, PERC Exhibit #2, in its entirety which contained within it a statement on impasse Articles #29 and #43 of the Special Master's Hearing, which had been voted on in the November 4, 1975 public meeting to consider the said impasse items; the Respondent has refused and continues to refuse to bargain collectively and in good faith with the Charging Party and did thereby engage in and is engaging in, unfair labor practices affecting the orderly and uninterrupted operations and functions of the government within the meaning of Chapter 447.501(1)(c), Florida Statutes. By its actions on or about December 2, 1975, at a regularly scheduled council meeting, the Respondent unilaterally altered the wages, hours and/or terms and conditions of employment of the members of the bargaining unit represented by the Charging Party by appropriating $900 for the purpose of purchasing Christmas turkeys for all City employees without consultation or bargaining with the Charging Party. This aforementioned act together with that of having represented to the Charging Party during negotiations at the Special Master's Hearing that the Respondent was prevented from granting further economic benefits to its employees; establishes that the Respondent has refused and continues to refuse to bargain collectively in good faith with the Charging Party, and did thereby engage in and is engaging in unfair labor practices affecting the orderly and uninterrupted operations and functions or government within the meaning of Chapter 447.501(1)(c), Florida Statutes.
Based upon the violations of Chapter 447.501(1)(a) and (c), Florida Statutes, it is recommended that the Public Employees Relations Commission issue an order requiring that the Respondent cease and desist from bargaining in bad faith by committing those violations which are set forth in the conclusions of law section of this recommended order, and by their order take such further steps as are necessary to achieve prompt agreement between the parties.
DONE and ENTERED this 31st day of August, 1976, in Tallahassee, Florida.
CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
Thomas W. Brooks, Esquire
Robert A. Sugarman, Esquire
Kaplan, Dorsey, Sicking & Hessen, P.A. Post Office Drawer 520337
Edward N. Moore, Esquire Moore, Kessler & Sheradsky 1995 Southwest 3rd Avenue Miami, Florida 33129
