STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE LODGE, )

FRATERNAL ORDER OF POLICE, )

)

Petitioner, )

)

and ) CASE NO. 76-1715

)

THE CITY OF LAUDERHILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing by the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on June 6, 1977, in the City Council Chambers.

APPEARANCES

For Petitioner: Weinsoff, Weinsoff & Carney, P.A.

by Irving Weinsoff, Esquire Suite 804, Roberts Building

28 West Flagler Street Miami, Florida 33130

For Public Bruce A. Leinback, Staff Attorney

Employees For William E. Powers, Jr., General Counsel Relations 2003 Apalachee Parkway, Suite 300 Commission: Tallahassee, Florida 32301

For Respondent: Anthony J. Titone, Esquire City of Titone and Roarke, P.A.

Lauderhill 6299 West Sunrise Boulevard, Suite 205

Sunrise, Florida 33313 RECOMMENDED ORDER

For good cause shown, the undersigned permitted the parties an extension of time to file briefs and proposed recommended orders for the assistance and preparation of my order through September 15, 1977. Briefs have been received from counsels for the Charging Party and counsel for the General Counsel of the Public Employees Relations Commission (hereinafter sometimes called PERC or the Commission) which have been considered. By way of background, the Florida State Lodge, Fraternal Order of Police (FOP or the Charging Party), filed two unfair labor practice charges against The City of Lauderhill (herein sometimes called the Respondent) on May 24 and June 8. 1976. It was there alleged that the Respondent, by unilaterally adopting rules and regulations for City employees, and in conditioning bargaining upon the resolution of an unfair labor practice charge, committed unfair labor practices as defined by the Public Employees Relations Act (herein sometimes referred to as the Act). Following the

investigation of the charges, the General Counsel of PERC issued a consolidated complaint on October 6, 1976. The General Counsel dismissed the Charging Party's allegation that the City's adoption of a pay plan for police department employees constituted a violation of Chapter 447.501(1)(a) and (c), F.S. Following an appeal of that partial dismissal, the Commission issued an order sustaining the appeal and thereafter a motion to amend the complaint and reopen the record was granted by the undersigned. The Respondent filed an answer denying the operative elements of the charge and alleged as affirmative defenses, that the FOP "fully participated" in the formulation of the rules and regulations; that as a matter of law the Respondent had the right to adopt rules and regulations governing its employees; and that the Charging Party's filing of the unfair labor practice charge (PERC Case No. 8H-CA-766-1086) was "an act tantamount to a refusal to bargain in good faith with the Respondent City".

The issues posed herein are:

1. Whether the Respondent's adoption of the City Service Rules and Regulations, first and second parts (rules and regulations Numbers 511 and 571 adopted respectively December 30, 1975 and April 28, 1976), was an unfair labor practice within the meaning of Section 447.501(1)(a) and (c) of the Act.

   
   

2. Whether the Respondent's refusal to continue negotiations with the Charging Party until the pending unfair labor practice charges before the Commission were resolved constitute a violation of Section 447.501(1)(a)and(c) of the Act.

   
   

3. Whether the Respondent's adoption of a pay plan on March 30, 1976, for employees of the Lauderhill Police Department constitutes a refusal to bargain within the meaning of Section 447.501(1)(c) of the Act.

Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, and the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. On October 18, 1971, the Respondent through ordinance Number 201 (Respondent's Exhibit 1) established a civil service system. The ordinance in pertinent part provided that the civil service board shall "adopt, enact and amend a code of rules and regulations for each department covering, among other things, duties, hours of work, discipline and control, rules and regulations for appointment, employment, suspension and discharge of employees based on merit, efficiency, character and industry." Evidence reveals that the Civil Service Board took no action to "adopt, enact or amend a code" pursuant to Section 5 of ordinance Number 201 and, until the unilateral acts here complained of, Respondent had little in the way of written rules and regulations. However, within the Police Department there were "general rules of conduct" which had been promulgated by the Police Chief. (See G C Exhibit 8). Thereafter, the City Attorney drafted an ordinance amending ordinance Number 201 (see Respondent's Exhibit 8). Police Department representatives attended a meeting with the Mayor on June 15, 1975, for the purpose of discussing the proposed amendment to ordinance Number 201. After the meeting, George Slinkman, then President of the FOP, learned of its purpose and was given a rough draft of the proposed amendment. He was informed that the departmental representative had voiced objections to the Mayor concerning the amendment and on July 31, 1975, the proposed amendment came before the City Council at a workshop meeting. Present at that meeting was the President of the FOP who informed the council

   that the FOP was in favor of implementation of the original ordinance Number 201 rather than the proposed amendment to which the FOP objected. President Slinkman indicated that if the Respondent was proceeding with the new amendment as proposed, the FOP would like to provide some input into the proposal. No further action on the proposed amendment was taken by the City Council at that meeting nor did it appear on subsequent council agendas.

   
   

2. On December 15, 1975, PERC certified the Charging Party as the exclusive bargaining representative of Lauderhill Police Department Employees in the following unit.

   
   

   INCLUDED: Police Detectives, Officers and Sergeants.

   
   

   EXCLUDED: Police Lieutenants, Captains and the Chief. (See G.C. Ex. 7).

   Approximately two weeks later, the City Service Rules and Regulations, first part, through implementing resolution Number 511 (G.C. Ex.2) was presented to the City Council by the Mayor as an implementation of Civil Service Ordinance Number 201. The rules contained therein governed personnel recruitment and examinations for positions within the City. The Mayor informed the Council that there had been no employee input on such rules. While members of the Council received their copies approximately five days prior to the December 30th Council meeting, they were informed at the meeting that copies had not otherwise been distributed. City resolution no. 511 was passed by the City Council at the December 30, 1975, meeting and became effective immediately. Apart from the fact that witnesses George Slinkman, the former President of the FOP and President Elect Ralph Dean testified that Respondent failed to request input from the FOP on the rules as adopted, they also testified that no agent of the Fraternal Order of Police was made aware of the existence of the newly passed resolution until several days thereafter. (TR.401-402, 420-422). On or about April 22, 1976, Richard Witt, FOP State President, wrote to Mayor Cipolloni advising that he had been asked to represent the Charging Party in collective bargaining negotiations with the Respondent. Witt requested a meeting with the Mayor for the purpose of discussing negotiations. In response, the Mayor suggested the parties meet during the morning of April 28, in the Mayor's office. On Tuesday night, April 27, the Mayor introduced the City Service Rules and Regulations, second part, along with implementing resolution Number 571 to the City Council. This document contained numerous proposed changes in terms and conditions of bargaining unit employees including changes in appointments, lay-offs re-employment, evaluations, physical and mental exams, weight regulations, hours of work, vacations, holidays, sick leave, suspensions, demotions and grievance procedures. The Council was informed that employees had not provided input on the rules although the Mayor expressed his understanding gained from a recently attended labor relations seminar that Respondent needed a base for forthcoming negotiations with the Charging Party. When it was learned that the Civil Service Board had not been consulted with regard to the document, the resolution was tabled and Civil Service Board members were invited to be present the following evening when it would be brought up again, Richard Witt, the Mayor, and Police Chief Ramsdell met as scheduled on the morning of April 28, 1976. Witt requested that prior to collective bargaining the City furnish him with budget documents and other materials pertaining to police officers' health program, welfare and other employment working conditions. The Mayor responded, according to Witt, that it would take some time for him to assemble such but that the information would be forthcoming. That night, the City Council passed resolution no. 571, which adopted the City Service Rules and 7Regulations, save the sick leave policies which became effective January 1, 1977. (See G.C. Ex. 6). Ralph Dean, the President of the Charging Party testified that Respondent was not requesting input from the FOP on the rules and

   regulations, second part, nor had FOP representatives been furnished copies of the documents prior to their adoption. Additionally, he testified that the Charging Party was not notified of the pending adoption of the document and did not obtain a copy of such until after passage on April 28, 1976. Corroborative testimony on this point was given by Councilwoman Hatcher and employees Dean and Slinkman.

   
   

3. The parties' first negotiation session was held on May 22, 1976 and at that time the Charging Party advised the Mayor and the City Attorney that in their opinion, some of their proposals were in violation of existing City ordinances, including the rules and regulations first and second parts. Two days thereafter, on May 24, 1976, the Charging Party filed with the Commission the instant unfair labor practice charges. The parties were again scheduled to meet on May 28, 1976. Upon receipt of the unfair labor charges, the City Council met with the Mayor in "executive session" and it was then decided that Respondent would "suspend bargaining" until the charges were disposed of. The Mayor arrived at the May 28th session and informed the Charging Party that Respondent would not return to the bargaining table until the pending charges had been resolved. A second charge was filed against the Respondent alleging essentially that the Respondent's suspension of bargaining constitutes a refusal to bargain in good faith within the meaning of Section 447.501(a)(c) of the Act.

   
   

4. The evidence also reveals that on approximately March 30, 1976, the Respondent adopted a pay plan for its police department employees who are in the bargaining unit in which the Charging Party was certified to represent. The pay plan, as adopted, represented a reduction in the existing pay plan. In adopting this plan, Frank C. Brown Associates, a management consulting firm, was commissioned to conduct a study to devise a pay plan for all city employees.

   The evidence reveals that the wage and job classification plan prepared by Frank

   C. Brown and Associates was not compiled based on any joint efforts by the Charging Party who had been certified to exclusively represent the police unit employees. Specifically, Ralph Dean objected to the new pay plan and in fact, Mayor Cipolloni testified that he gave no direction to Frank C. Brown and Associates to seek any input from the Charging Party and/or its agents. Based on the Charging Party's objections to the pay plan as submitted by Frank C. Brown on February 9, 1976, one pay grade was added to each of the ranks. The plan was submitted to the City Council on March 30, 1976 and was made effective immediately for all employees. Representatives of the Charging Party were present at this meeting and objected to the implementation thereof to no avail. Thereafter, and during the second negotiation session on May 28, 1976, the Respondent suspended negotiations with the Charging Party based on the fact that the Charging Party had filed unfair labor practice charges with the Commission.

   
   

   CONCLUSIONS

   
   

5. The essence of the collective bargaining relationship between public employers and its employees in the State of Florida is outlined in Chapter 447.309(1), Florida Statutes (1975). The dictates there mandates a bilateral decision making process which becomes effective after an employee organization has been certified by the Commission. At that juncture, the public employer is no longer free to make unilateral determinations with respect to items which are considered "wages, hours, and terms and conditions of employment". See for example District School Board of Hillsborough County and Hillsborough C.T.A., PERC order no. 76U-1181 (October 4, 1976). The Charging Party and/or its agents objected to the City Service Rules and Regulations first and second parts each time they were brought up before the Council. Respondent at no time requested any input from the Charging Party's agents respecting its position in

   fulfilling its obligation to represent the unit employees it was certified to represent. The Respondent's affirmative defense that the Charging Party's members were advised and participated in the enactment of the City Service Rules and Regulations and the pay scale as it relates to unit employees was considered. However, when an examination of the positive duty placed on the Respondent as it relates to its duty to bargain with the certified representative, such a position fails to withstand scrutiny and amounts to conduct representing an abrogation of its duty to meet with and confer with the designated certified representative. Absent an impasse, necessity or an express or implied waiver (all of which are absent here), the employer was expressly obligated to refrain from taking the unilateral action which it took on December 30, 1975, on March 30, 1976 and on May 28, 1976. Under these circumstances, and in the absence of any evidence which would permit the employer to unilaterally act as stated above, the conclusion is inescapable that the Respondent consciously abrogated its duty as set forth in Chapter 447.309(1), F.S., and engaged in conduct violative of the Act.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), F.S.

   
   

7. The authority of the Public Employees Relations Commission is derived from Chapter 447, Florida Statutes.

   
   

8. The parties to this proceeding were duly noticed pursuant to the notice provisions of Chapters 120 and 447, Florida Statutes.

   
   

9. 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.

   
   

10. The Charging Party is now, and has been at all time material herein, an employee organization within the meaning of Section 447.203(10) of the Act.

    
    

11. The Charging Party is now, and has been at all time material herein, the certified exclusive bargaining representative for the above-described unit which has been certified as appropriate by the Public Employees Relations Commission.

    
    

12. By unilaterally adopting the City Service Rules and Regulations, first and second part; including the pay plan far unit employees adopted March 30, 1976 and by its refusal to bargain until the above referenced unfair labor charges filed by the Charging Party had been resolved, the Respondent engaged in acts and conduct violative of Chapter 447.501(1)(a) and (c), Florida Statutes.

RECOMMENDATION

Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to post at its facilities, in conspicuous places, on forms to be provided by the Commission, a notice substantially providing:

that it will bargain collectively, upon request, with the Charging Party as the exclusive bargaining representative of the unit employees as stated above; that it will not make unilateral changes in wages,

hours, and other terms and conditions of employment of said employees and that it will not suspend bargaining or fail to meet and bargain collectively with the exclusive bargaining representative unless directed to do so by the Commission.

RECOMMENDED this 27th day of September, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Irving Weinsoff, Esquire Suite 804, Roberts Building

28 West Flagler Street Miami, Florida 33130

Bruce A. Leinback, Staff Attorney

for William E. Powers, Jr., General Counsel 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Anthony J. Titone, Esquire 6299 West Sunrise Boulevard Suite 205

Sunrise, Florida 33313

Docket for Case No: 76-001715

Orders for Case No: 76-001715