STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF ST. PETERSBURG, )

)

Respondent, )

)

vs. ) CASE NO. 76-1281

)

PINELLAS COUNTY POLICE )

BENEVOLENT ASSOCIATION, )

)

Charging Party. )

)

RECOMMENDED ORDER

Pursuant to notice, the subject case came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on September 23, 1976, 1/ in St. Petersburg, Florida.

APPEARANCES

Jane Rigler, Esquire, Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway

Tallahassee, Florida 32301

John C. Wolfe, Esquire Assistant City Attorney

214 Municipal Building

St. Petersburg, Florida 33701

Donald D. Slesnick, II, Esquire 2540 Northwest 29th Avenue Miami, Florida

Attorney for the Charging Party

The Acting General Counsel of PERC, issued a consolidated complaint and notice of hearing in this case on September 9. The complaint alleges in pertinent part that the City of St. Petersburg (hereinafter Respondent) refused and continues to refuse to bargain collectively with the Pinellas County Police Benevolent Association (hereinafter sometimes referred to as the Charging Party) in contravention of Florida Statutes 447.501(1)(a) and (c). The Respondent filed an answer denying the commission of any unfair labor practices and admitting that it (Respondent) is a public employer within the meaning of Chapter 447, Florida Statutes. Respondent's answer also admits that the Charging Party is an employee organization within the meaning of Chapter 447, Florida Statutes, and that the Charging Party was certified by the Public Employees Relations Commission (hereinafter PERC) in Case Numbers 8H-RA-756- 2095; 2034, as exclusive bargaining representative for city employees in two bargaining units. One unit includes all St. Petersburg police officers below the rank of sergeant, including identification and fingerprint technicians, and

excluding all other ranks. The other unit includes sergeants and lieutenants and excludes all other ranks.

Based upon my observation of the witnesses and their demeanor while testifying, I make the following:

FINDINGS OF FACT

1. On March 10, the Charging Party began negotiations on behalf of both units with the Public Employer seeking a contract for the 1976 - 1977 fiscal year. On May 10, after eight (8) negotiating sessions, the negotiators for both sides reached an agreement upon a tentative contract, subject to ratification by the unit's membership and approval by the Public Employer. During the eight (8) negotiating sessions prior to tentative agreement both sides agreed to the withdrawal of numerous contract proposals. On May 19 and 20, the tentative agreement was submitted to the membership of both units for approval, pursuant to Section 447.309(1), F.S. The membership of both units unanimously rejected the proposed agreement at that time. Thereafter, on May 21, the Charging Party notified the Public Employer of the rejection by letter and requested further negotiations pursuant to Section 447.309(4), F.S. Pursuant to this request the Public Employer and Charging Party met for the first post-rejection negotiating session on May 26. The Charging Party presented the Public Employer with three lists designated as List A, List B, and List C. List A enumerated articles contained within the rejected contract which the Charging Party felt could remain unchanged and would not require further bargaining. List B contained those articles which had been withdrawn during negotiations, but which the Charging Party was of the opinion were not necessary to include in the contract in order for successful ratification by unit members. List C contained those articles in which the Charging Party maintained that further negotiations were necessary in order to achieve a ratifiable contract. See General Counsel`s Exhibit number 4 received in evidence.

   
   

2. James R. Norris, the Charging Party's president and chief negotiator testified that the items noted on List C were formulated on the basis of the information which the Charging Party solicited from the voting unit members during discussions which preceded the ratification vote.

   
   

3. It is undisputed that on May 26, the Public Employer, through its chief negotiator, Robert E. DuVernoy, refused to negotiate on nine (9) articles found on List C which were presented to it by the Charging Party for further negotiations. Those articles were: leave, work rules, P.B.A. business, injury leave, pension, safety, group health insurance and funeral expenses, off-duty work, and special skills. DuVernoy testified that there was no requirement that the Public Employer bargain over items that had been withdrawn prior to rejection of the proposed agreement and he therefore did not negotiate on those items. He testified that his refusal was based on language of Section 447.309(4), F.S., and the "negotiating guidelines" signed by the parties at the start of negotiations.

   
   

4. Based on this refusal, the Charging Party filed the subject charges with PERC on May 27. After the May 26 meeting the Public Employer, by letter, requested the Charging Party to put its proposals in writing. At the final negotiating session on June 2, specific written proposals on all the articles set forth on the "C" list were presented to DuVernoy, who accepted them but refused to respond and/or negotiate any of those items. DuVernoy maintained his prior position that there was no duty to bargain on items which had been

   withdrawn. DuVernoy declared impasse and at no time has the Public Employer negotiated on those items contained in List C.

   
   

5. The Respondent takes the position that it had no bargaining obligation as to those items contained on List C for two reasons. First of all, it maintains that under the negotiating guidelines there was no requirement for further negotiation once an item had been withdrawn. Secondly, it maintains that Chapter 447.309(4), Florida Statutes, provides that upon rejection only the "agreement" shall be returned to the bargaining agents for further negotiation. (See Respondent's Exhibit number 1 received into evidence and made part hereof by reference).

   
   

6. An examination of the negotiating guidelines reflect that it deals with two subjects. The first two sentences deal with proposals that are tentatively agreed to by both parties and provides for the agreement to be tentative and subject to further negotiation by the parties until the final agreement is signed by them. The last sentence provides that "proposals withdrawn by either party shall be initialed by both parties to signify that the proposal is no longer an issue for discussion". Respondent takes the position that the May 10 agreement reached by the negotiators represented a signed agreement and that each of the articles contained therein had been signed by the negotiators initialing the individual articles. Said agreement did not include certain items which had been withdrawn pursuant to paragraph nine (9) of the negotiating guidelines. Upon rejection by the union's membership, Respondent maintains that, under the guidelines, there existed no obligation on the City's part to negotiate on the withdrawn items.

   
   

7. It is undisputed that during the course of the negotiations the parties did not rigidly abide by many of the guidelines and in those instances in which there was noncompliance, neither party complained. Respondent takes the position that since paragraph 14 of the guidelines provides for the changing thereof by mutual consent, it is clear that whenever "there is noncompliance with the guidelines and neither party complains, there has been an implicit mutual consent to change the guidelines for that particular application." Respondent maintains that there was never any mutual consent to change paragraph nine (9) of the guidelines. Therefore, Respondent urges that when it refused to bargain on the withdrawn items, it was simply following the guidelines as agreed to by the parties. In further defense of its position, Respondent refers to Chapter 447.309(4), F.S., which states in pertinent part that "if the agreement

   . . . is not approved by a majority vote of employees voting in the unit, . . . the agreement shall be returned to the chief executive officer and the employee organization for further negotiation." The City's interpretation of this is that when the union's membership rejected the May 10 agreement which had been agreed to by the negotiators, the parties were obligated to negotiate only on the agreement which was rejected. It therefore maintains that since the Charging Party submitted to Respondent items for negotiation which were not contained in the May 10 agreement, that the City was under no obligation to bargain based on the cited statute.

   
   

8. An examination of the proposals submitted by the Charging Party for further negotiations cover items which have been traditionally found to be mandatory subjects of bargaining. As such, any alleged waiver of a statutory right must be clear and unmistakable. See for example, Timken Roller Bearing v. N.L.R.B., 325 F.2d 746, 54 LRRM 2785 (CA 6, 1963), The Item Company, 220 F.2d 956, 35 LRRM 2709 (CA 5, 1955). And in view of the certification which issued to the Charging Party by PERC, Respondent was under an obligation to continue bargaining with the Charging Party until impasse had been reached and the

   parties could not resolve their disputes via other statutory means. During the course of the hearing, the Respondent's chief negotiator armed with some approximately twelve (12) years experience at the negotiating table, indicated his familiarity with the negotiating process and was of the opinion that the negotiating process called for ratification by the unit members prior to army final agreement having been reached. Since the testimony is clear that the unit members unanimously rejected the tentative agreement reached on May 10, it necessarily follows that the parties were under an obligation to continue to make efforts to reach an agreement acceptable to both sides. It cannot be said with any degree of seriousness that the parties reached an approved agreement within the meaning of Chapter 447.309, F.S., in view of the unanimous rejection of the proposed agreement by unit members. Turning to the contention by Respondent that the Charging Party's negotiators waived its right to negotiate further on items not contained in the agreement, it is clear from the evidence that the Charging Party's negotiators did not waive or concede on those items which are mandatory subjects of bargaining. Furthermore, a fundamental doctrine of labor law recognizes that an employer is under a continuing obligation to bargain over any matter which is not included in the collective bargaining agreement but affects terms and conditions of employment. See for example, Long Lake Lumber Company, 160 NLRB 123, 63 LRRM 1160 (1966). In this case, the evidence evince that neither the union negotiators nor its members ever indicated a willingness to waive its statutory right to bargain over the items submitted in List C. Based on these facts, and the entire record in this case, I therefore conclude that the Respondent, by refusing to negotiate over mandatory subjects of bargaining, violated Section 447.501(1)(a) and (c), Florida Statutes.

   
   

   CONCLUSIONS OF LAW

   
   

9. The parties to this proceeding were duly noticed pursuant to the provisions of Chapter 120 and Chapter 447, Florida Statutes.

   
   

10. The authority of PERC is derived from Chapter 447, Florida Statutes.

    
    

11. The Respondent is a Public Employer within the meaning of Chapter 447, Florida Statutes.

    
    

12. The Charging Party is an employee organization within the meaning of Chapter 447, Florida Statutes.

    
    

13. By refusing to negotiate over mandatory subjects of bargaining, which had been withdrawn from the bargaining table prior to rejection by the membership of the Pinellas County Policemen Benevolent Association's rejection of the proposed contract, the Respondent violated Section 447.501(1)(a) and (c), Florida Statutes.

RECOMMENDED ORDER

Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it:

1. Bargain collectively, upon request, with the Pinellas County Police Benevolent Association as the exclusive representative of the employees in the units described above. Such duty to bargain shall extend to all mandatory subjects of bargaining, irrespective of the withdrawal of contract proposals covering such subjects prior to the unit membership's rejection of a tentative contract.

2. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: That it will not refuse to bargain, upon request, with Pinellas County Police Benevolent Association, as exclusive representatives of the employees in the units described above; that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, leave, work rules, P.B.A. business, injury leave, pension, safety, group health insurance and funeral expenses, off-duty work, and special skills; that its duty to bargain will continue irrespective of the withdrawal of proposals covering such subjects prior to a union membership rejection of a tentative contract.

DONE and ORDERED this 5th day of November, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

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

(904) 488-9675

ENDNOTE

1/ Unless otherwise noted, all dates are in 1976.

COPIES FURNISHED:

Jane Rigler, Esquire John C. Wolfe, Esquire

Staff Attorney Assistant City Attorney Public Employees Relations 214 Municipal Building

Commission St. Petersburg, Florida 33701 Suite 300, 2003 Apalachee Parkway

Tallahassee, Florida 32301 Donald D. Slesnick, II, Esquire

2540 Northwest 29th Avenue Miami, Florida

Docket for Case No: 76-001281

Orders for Case No: 76-001281