STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF HALLANDALE, )

)

Respondent, )

and ) CASE NO. 76-463

) PERC NOS. 8H-CA-753-1040

DAVID G. TRACY, ) 8H-CA-766-1039

)

Charging Party, ) and )

)

CITY OF HALLANDALE, )

)

Respondent, )

and )

)

HALLANDALE PROFESSIONAL ) FIREFIGHTERS ASSOCIATION LOCAL ) NUMBER 2238, )

)

Charging Party. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on June 17 and 18, 1976, in Hallandale, Florida. The following appearances were entered:

APPEARANCES

For Public Employees Gerald Williams Relations Commission: Tallahassee, Florida

For Charging Parties: Joseph Kaplan

Miami, Florida

For Respondent: Herbert B. Mintz and Steve Robey

Miami, Florida

On October 8, 1975, David G. Tracy filed a charge against his employer, the City of Hallandale, with the Public Employees Relations Commission (Hearing Officer's Exhibit 1). The basis of the charge is set out in Paragraph 2 as follows:

"On or about September 30, 1975, and again on October 1, 1975, the City did unilaterally alter the terms and conditions of employment for me and all other firefighters despite the fact the labor organization I selected to be

my negotiating agent was bargaining on my behalf."

On March 11, 1976, the Hallandale Professional Firefighters Association Local number 2238 ("Firefighters Union" hereafter) filed a similar charge against the City of Hallandale, (Hearing Officer's Exhibit 2). On April 8, 1976, the Acting General Counsel of the, Public Employees Relations Commission entered a notice consolidating the two cases (Hearing Officer's Exhibit 3), and issued a Complaint and Notice of Hearing (Hearing Officer's Exhibit 4). The Complaint is based upon the same matters alleged in the charges, and expands thereon. On April 21, 1976, the City of Hallandale filed an Answer to the Complaint (Hearing Officer's Exhibit 5). An Amended Notice scheduling the final hearing to be conducted on June 17 and 18, 1976, was issued on June 2, 1976 (Hearing Officer's Exhibit 6). At the hearing the City of Hallandale ("Respondent" hereafter) moved to dismiss the charges and the complaint for the reasons set out in their Answer as affirmative defenses. The motion was denied, and has been carried forward with the case.

The General Counsel called the following witnesses: John Gauthier, an employee in the Respondent's Fire Department, and a former President of the Firefighters Union; and David G. Tracy, an employee of the Respondent's Fire Department and a former President of the Firefighters Union. The Respondent called Barbara Campbell, the Respondent's Director of Personnel as a witness. The Charging Parties recalled David G. Tracy as a witness. The Hearing Officer called June Watts, the City Clerk of the Respondent as a witness. Hearing Officer's Exhibits 1 - 6; General Counsel's Exhibits 1 - 3, and 4 - 7; Charging Parties Exhibits 1 - 4 and Respondent's Exhibits 1 - 16 were received into evidence at the hearing. General Counsel's Exhibit 4 was marked for identification, but was not received. The Acting General Counsel and the Respondent have submitted Post Hearing Memoranda of Law. The Respondent has submitted Proposed Findings of Fact and Conclusions of Law.

Conflicting testimony was presented at the hearing with respect to several matters. In resolving these conflicts, due regard has been given to the demeanor of the witnesses at the hearing.

FINDINGS OF FACT

1. David G. Tracy is, and at all material times has been, an employee of the Respondent, and a public employee within the meaning of Florida Statutes s. 447.203(3).

   
   

2. The Firefighters Union is, and at all material times has been, an employee organization within the meaning of Florida Statutes s. 447.203(10).

   
   

3. The Respondent is a public employer within the meaning of Florida Statutes s. 447.203(2).

   
   

4. The Respondent and the Firefighters Union have been engaging in the collective bargaining process since prior to October, 1973. The parties first entered into a collective bargaining agreement on October 16, 1973. 1/ A second agreement was adopted on March 4, 1975. 2/ This latter agreement was retroactively effective from the first day of October, 1974 until October 1, 1975. The collective bargaining relationship that existed between the Firefighters Union and the Respondent, and the contracts promulgated by them were undertaken in accordance with the Firefighters Bargaining Act, Florida Statutes (1973) 447.20 et seq.

5. In 1972, the Respondent adopted a merit pay plan as a part of its general pay plan. The merit pay plan was adopted by ordinance of the City Commission, but it was not immediately funded. The merit pay plan was funded by the Respondent for the first time in March, 1975, retroactive to October 1, 1974. The merit pay plan as adopted, and as funded, applied to all employees of the Respondent. The merit pay plan was specifically included as part of the second agreement between the Respondent and the Firefighters Union. 3/

   
   

6. In accordance with the second agreement, which was then in effect, the Firefighters Union advised ,the Respondent that it wished to renegotiate 12 of the 36 articles contained in the agreement by letter dated May 22, 1975. 4/ Negotiations commenced during the month of June, 1975. Mr. John Kooser, the Respondent's Assistant City Manager, represented the Respondent at the initial bargaining sessions. Among the articles which the Firefighters Union was seeking to renegotiation was Article 14, Wages. Article 14 included the reference to the merit pay plan. At the initial sessions the Firefighters Union indicated that it was requesting an across-the-board pay increase, and a grade increase for rescue drivers. The Firefighters Union did not mention the merit pay plan at the sessions. Mr. Kooser did not respond to the specific requests pertaining to wages, and raised nothing respecting the merit pay plan. During July, 1975, Diane Schiffman, the Respondent's Personnel Director, became the Respondent's chief negotiator. During the time that Ms. Schiffman served as chief negotiator, the merit pay plan was not raised as an issue at bargaining sessions. Herbert Mintz, an attorney, became the Respondent's chief negotiator on July 31. The merit pay plan was not raised as a subject for bargaining during any of the negotiating sessions attended by Mr. Mintz prior to October 3, 1975. The merit pay plan was discussed at a negotiating session on September 10, 1975; however, it was not discussed as a subject for bargaining. A City Commission meeting had been conducted on September 9, 1975, and on September 10, 1975 Mr. Mintz asked the Firefighters Union representative what had transpired at that meeting respecting the merit pay plan.

   
   

7. On or about August 15, 1975 John Kooser, then acting city manager of the Respondent, presented his budget submission message to the Mayor and City Commission for the fiscal year 1975-76. 5/ Mr. Kooser therein stated:

   
   

   "I recommend that merit increases for FY 75-76 be suspended and to support this action they have not been budgeted in the FY 75-76 budget."

   
   

   A copy of the proposed budget was delivered to the Charging Parties. Mr. Tracy in turn delivered the proposed budget to a private consulting firm. The merit pay plan was not budgeted in the proposal; however, neither Mr. Tracy nor any other representative of the Firefighters Union deciphered that fact from the proposed budget. The consulting firm did not so advise the Charging Parties.

   Whether the merit pay plan would be implemented for the 75-76 fiscal year was a topic for discussion at a City Commission meeting on September 9, 1975. Mr.

   Gauthier, as a representative of the Firefighters Union, addressed the City Commission at that meeting, and argued forcefully in favor of maintaining the merit pay plan. It is apparent that Mr. Gauthier was aware that the Respondent was considering suspending the merit pay plan for all employees, including firefighters. Mr. Gauthier and Mr. Tracy testified that they believed the Respondent was considering suspending the merit pay plan only for employees other than firefighters. It is apparent, however, from the comments that he made at the City Commission meeting on September 9, that Mr. Gauthier did know that the Respondent was considering suspending the plan for all employees. From

   other comments made at the meeting and from the totality of the circumstances, Mr. Gauthier should have known what the Respondent was planning, and his testimony that he did not is not creditable.

   
   

8. At a meeting conducted on October 1, 1975 the Respondent's City Commission suspended the merit pay plan for the 1975-76 fiscal year, effective on that date. No impasse had been reached in negotiations respecting the merit pay plan on October 1, and indeed, the merit pay plan had not been actively negotiated. It has not been shown that suspension of the merit pay plan was a matter of fiscal necessity for the Respondent. The Charging Parties did not learn of the action until October 3.

   
   

9. A negotiating session had been scheduled for October 3, 1975. The parties met on that date. Mr. Tracy, representing the Firefighters Union expressed outrage at the Respondent's action. He expressed the position of the union that only those matters raised in General Counsel's Exhibit 2 were open for negotiation, and that the merit pay plan was not among those items. Mr. Mintz, as the Respondent's chief negotiator, expressed the Respondent's position that all issues were open for negotiation. No specific discussion was had respecting future reinstatement of the merit pay plan. The meeting did not last long. It terminated when Mr. Tracy walked out.

   
   

10. Since October 3, 1975, the parties have engaged in several negotiating sessions. The Respondent has made no specific proposals respecting the merit pay plan other than to note in a proposed contract that the plan had been suspended. 6/ The Respondent has not, since October 3, 1975, either formally or informally refused to bargain respecting the merit pay plan, and has, in fact, been willing to do so. The Charging Parties have not requested that the merit pay plan be negotiated, but have rather rested on their earlier position that the merit pay plan is not properly a matter for negotiation, and should be reinstated retroactively to October 1, 1975. At the time that the complaint was filed by the General Counsel, the merit pay plan had not become an active matter of negotiation. The parties may have reached an impasse as to whether the merit pay plan is properly a subject for negotiation.

    
    

11. Contracts negotiated between the Firefighters Union and the Respondent for the 1973-74 and 1974-75 years were not adopted in accordance with the provisions of the Public Employees Relations Act. Florida Statutes s. 447.201 et seq. The Act became effective during December, 1974. On or about September 2, 1975, the Respondent and the Firefighters Union filed a voluntary recognition petition with the Public Employees Relations Commission. On or about January 13, 1976, the Public Employees Relations Commission certified the Firefighters Union as the exclusive bargaining representative of employees in the Respondent's Fire Department. The Firefighters Union had not been certified by PERC at the time that the Respondent suspended the merit pay plan.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Florida Statutes s. 120.57(1).

13. Florida Statutes s. 447.501 provides in pertinent part as follows: "Public employers or their agents or

    representatives are prohibited from:

    1. Interfering with, restraining,

       or coercing public employees in the exercise

       of any rights guaranteed them under this part.

       (c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit."

       
       

       Merit pay plans are among the terms and conditions of employment for public employees. Whether a merit pay plan should be adopted, modified, or suspended is a matter upon which a public employer is obliged to bargain. Florida Statutes s. 447.203(14); NLRB v. Katz, 369 U.S. 736 (1962); NLRB v. Allison and Co., 165 F.2d 766 (6 Cir. 1948). During the time that negotiations are underway, unilateral action taken by an employer to alter the terms or conditions of employment including a merit pay plan, constitutes an unfair labor practice, unless the parties have reached an impasse with respect to the matter, or unless the employer can establish that the action was otherwise a matter of fiscal necessity. NLRB v. Katz, supra; Firch Baking Company v. NLRB, 479 F.2d 732 (2 Cir. 1973); NLRB v. Eagle, Inc. ,434 F.2d 93 (5 Cir. 1970). If the

       Respondent in the case sub judice, had an obligation to engage in collective bargaining with the Firefighters Union, its unilateral action terminating the merit pay plan would constitute an unfair labor practice unless the parties had reached impasse in their negotiations, which they had not, or unless the Respondent established that the action was otherwise a matter of fiscal necessity, which it did not.

       
       

14. At the time that the Respondent suspended the merit pay plan, negotiations between the Respondent and the Firefighters Union were in progress. The Firefighters Union had not, however, been certified by the Public Employees Relations Commission. A Public Employer has no obligation to engage in collective bargaining with an employee organization unless the organization has been certified by the Commission. Florida Statutes s. 447.501(1)(c) prohibits a public employer from refusing to bargain collectively, or failing toargain collectively in good faith "with the certified bargaining agent for the public employees in the bargaining unit." Certification of an employee organization which has received voluntary recognition does not occur until the Commission approves the appropriate collective bargaining unit. Florida Statutes s. 447.307(1).

    
    

15. The only rights guaranteed under the Public Employees Relations Act which the Respondent infringed by suspending the merit pay plan were rights to engage in collective bargaining; however, these rights had not been consummated because the employee organization was not certified. Florida Statutes s. 447.301(2), 447.501(1)(c). The Public Employees Relations Commission does not have jurisdiction to consider a public employer's refusal to bargain, or unilateral action taken by a public employer with respect to a matter under negotiation as unfair labor practices unless the employee organization has been certified.

    
    

16. The Public Employees Relations Commission has previously held that a public employer does not engage in an unfair labor practice under the Act when it refuses to bargain, or takes action which could be considered a refusal to bargain with an employee organization which has not been duly certified by the Commission. See: Teamsters Local Union v. Broward County; PERC Case No. 8H-CA- 752-0047, DOAH Case No. 75-1109 (Order entered April 14, 1976). The Hearing Officer's Recommended Order which was incorporated into the decision of the Commission provides in part as follows:

    "The parties stipulated at the hearing that PERC has not certified the union under either of the methods provided in s. 447.307, i.e., voluntary recognition by the employer or after a representa- tion hearing in an election ordered by PERC. Accordingly, since under the Act, a Public Employer is not required to bargain collectively until an employee organization has been certified pursuant to the provisions of the Act, Respondent cannot

    be found to have failed to bargain collectively

    in good faith. In like manner, since the collective bargaining agreement in question was not agreed

    upon between a Public Employer and a certified bargaining agent for a bargaining unit, as those terms are defined in the Act, there can be no finding of a refusal to sign the agreement in violation of the statute. It is therefore con- cluded that the Respondent did not commit the unfair labor practices alleged in the complaints"

    
    

17. It is apparent that the National Labor Relations Board would have jurisdiction to find such conduct as the Respondent's in the case sub judice to be an unfair labor practice despite the fact that the Board had not certified the labor organization. See e.g. General Electric Company v. NLRB, 400 F.2d 713 (5 Cir. 1968). Section 8(a)(5) of the National Labor Relations Act, 29

    U.S.C.A. s. 158(a)(5) provides:

    
    

    "(a) It shall be an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees..." (Emphasis supplied).

    
    

    The language "with the representatives of his employees" from the National Labor Relations Act was not adopted by the drafters of the Florida Public Employees Relations Act. Instead, the language "with the certified bargaining agent for the public employees in the bargaining unit" was chosen. A labor organization can factually be the representative of employees, thus triggering the employer's obligation to bargain, without any action being taken by the National Labor Relations Board. Indeed, once a private sector employer must reasonably conclude that the employee organization enjoys majority status, it is the employer's duty to engage in collective bargaining. NLRB v. J. M. Machinery Corp., 410 F.2d 587 (5 Cir. 1969). In the Florida public sector, however, an employer is obliged to bargain only with the certified bargaining agent. There can be no certified bargaining agent until the Commission acts to approve a unit and certify the employee organization.

    
    

18. The Public Employees Relations Commission is without jurisdiction to take action respecting the conduct of the Respondent, City of Hallandale, which occurred prior to January 13, 1976. The evidence does not establish that any unfair labor practice has occurred since January 13, 1976.

    
    

19. The charges filed herein, and the Complaint issued by the General Counsel should be dismissed.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:

1. That the unfair labor practice charge filed by David G. Tracy against the City of Hallandale be DISMISSED.

   
   

2. That the unfair labor practice charge filed by the Hallandale Professional Firefighters Association Local number 2238 against the City of Hallandale be DISMISSED.

   
   

3. That the Complaint filed by the Acting General Counsel of the Public Employees Relations Commission against the City of Hallandale be DISMISSED.

ENTERED this 1st day of October, 1976 in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ Charging Party Exhibit 1.

2/ General Counsel's Exhibit 1.

3/ See: General Counsel's Exhibit 1, Article 14, Wages. 4/ General Counsel's Exhibit 2.

5/ Respondent's Exhibit 14. 6/ Respondent's Exhibit 13.

COPIES FURNISHED:

Joseph H. Kaplan, Esquire KAPLAN, DORSEY, SICKING,

& HESSEN, P.A.

1951 Northwest 17th Avenue Miami, Florida 33125

Gerald A. Williams, Esquire Public Employees Relations

Commission - Suite 300 2003 Apalachee Parkway

Tallahassee, Florida 32301

Herbert B. Mintz, Esquire Suite 600

100 Biscayne Blvd. North Miami, Florida 33132

Docket for Case No: 76-000463

Orders for Case No: 76-000463