STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA BATES, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4348

)

SCHOOL BOARD OF PINELLAS )

COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on November 17, 1992, in Largo, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Louis Kwall, Esquire

GROSS & KWALL

133 North Fort Harrison Avenue Clearwater, Florida 34615

For Respondent: Bruce P. Taylor, Esquire

Pinellas County School Board Largo Administration Building

301 Fourth Street, S.W. Post Office Box 2942 Largo, Florida 34649

STATEMENT OF THE ISSUES

Whether Petitioner is entitled to participate in an early retirement incentive program established by an amendment to the 1991-1994 Collective Bargaining Agreement between the School Board of Pinellas County and the Pinellas Classroom Teachers Association.

PRELIMINARY STATEMENT

On April 20, 1992, Petitioner submitted an application to retire, and sought approval to receive an early retirement incentive bonus from the School Board. Her application was denied, and on May 21, 1992, Petitioner filed a request for a formal hearing pursuant to Chapter 120, Florida Statutes. On July 14, 1992, the School Board referred this matter to the Division of Administrative Hearings for hearing pursuant to Section 120.57(1), Florida Statutes, and this hearing followed.

At the hearing, one joint exhibit was admitted, Petitioner testified in her own behalf, and offered six exhibits in evidence. Respondent presented the testimony of two witnesses, and offered thirteen exhibits in evidence. The transcript of the hearing was filed on November 30, 1992. Petitioner's proposed findings of fact and conclusions of law was filed on December 16, 1992, and Respondent's proposals were filed on the same day. My specific rulings on the parties' proposals are set forth in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Barbara Bates, is presently employed by the Pinellas County School Board, serving as a guidance counselor at the 16th Street Middle School.

   
   

2. The Pinellas Classroom Teachers Association (P.C.T.A.) is the exclusive bargaining agent for all teachers employed by the School Board of Pinellas County (Board).

   
   

3. The term "teachers", as used in that context, includes full time guidance counselors.

   
   

4. At all times relevant, there was in force a collective bargaining agreement between the Board and the P.C.T.A., effective 1991-1994.

   
   

5. During the 1991-92 school year, the Board experienced severe losses in revenue, and had to prepare for substantial budget cut backs in 1992/93 fiscal/school year.

   
   

6. Among the measures taken by the Board to reduce expenditures was a reduction in the number of instructional personnel.

   
   

7. To keep the number of instructional personnel involuntarily terminated as small as possible, the P.C.T.A. and the Board negotiated modifications to the existing collective bargaining agreement between them, providing for extended leave options, shared teaching responsibilities and early retirement incentives.

8. The modifications stated in pertinent part: "ARTICLE 1

   1. These proposed amendments to the agreement are in effect for 1992-93 only and cannot be extended without the mutual agreement of the parties . . . ARTICLE XX - TERMINAL PAY

      The following language will be implemented as part of the current language in Article XX, Section B:

      1. "Employees who are eligible for and accept regular retirement at thirty (30) years of creditable FRS service . . . shall receive a cash incentive of $8,500 payable upon retirement

         . . .

         IN WITNESS WHEREOF the aforesaid parties have hereunto executed this Agreement on the 11th day of March, 1992, to be effective on the 1st day of July 1992."

9. Said language was ratified by the Board on March 11, 1992, and was subsequently ratified by a vote of the membership of the P.C.T.A.

   
   

10. The amount of $8,500, as a retirement incentive, was arrived at as the average amount the Board would have had to pay in unemployment benefits to laid off teachers, and it was determined that it would be preferable to pay that amount to an employee to obtain voluntary retirement rather than to pay it to a former employee who had been involuntarily laid off, or terminated due to budget cuts.

    
    

11. It was the understanding of the parties (the Board and P.C.T.A.), that in order to achieve that desired result, the individuals exercising the retirement option would have to be retired by the start of the school year, 1992/93, or else the position occupied by the retiring teacher could not be filled with a teacher who would otherwise have been terminated or laid off.

    
    

12. The approved policy manual of the Board provides that the school year calendar begins July 1 of one year and ends on June 30 of the following year.

    
    

13. Barbara Bates is a guidance counselor employed full time by the Board, and is thus a member of the bargaining unit represented by the P.C.T.A.

    
    

14. Barbara Bates does not currently have thirty (30) years of creditable service in the Florida Retirement System (FRS), but will attain such on January 29, 1993.

    
    

15. On April 20, 1992, Barbara Bates submitted an application to retire to be effective when she did attain thirty years of creditable service, and to receive the $8,500 cash incentive. Petitioner's application to retire and receive the incentive was submitted in a timely fashion.

    
    

16. Initially, no individual other than Barbara Bates employed by the Board who would have attained thirty (30) years of creditable service after the start of the 1992/93 school year actually applied for the $8,500 retirement incentive; however, a number of individuals inquired as to the possibility of retiring shortly after the start of the 1992/93 school year.

    
    

17. In order to clarify the intent of the March 11, 1992 amendment to the collective bargaining agreement, and to increase the number of individuals for whom the $8,500 incentive would be available, the Board and the P.C.T.A. approved another amendment to the collective bargaining agreement which stated in part:

    
    

    ". . . 6. The parties to the agreement concur that the intent of the retirement incentive program is to create vacancies to avoid laying off teachers in August of 1992. To this end, eligibility for participation in this incentive was limited to those educators who met eligible requirements on or before June 30, 1992. Subsequent to the receipt of applications, a number of exceptions were requested

    by those who were close to the June 30 deadline. In an effort to accommodate these requests and still satisfy the intent of the parties to create vacancies prior to the opening of school in the fall, the parties mutually

    agreed that the following exceptions will be allowed to the original requirement of thirty years service or

    ten years of service and age 62 prior to June 30, 1992:

    
    

    1. Employees who are not yet 62, but are willing to accept the State imposed penalty of 5/12ths of 1% per month, provided their date of retirement is on or before June 30, 1992, or in the case of 235 day contract teachers the last day of their July, 1992 quinmester.

       
       

    2. Employees on 235 day contracts who wish to work until the end of the quinmester in July, and who meet eligibility criteria prior to the end of that quin.

       
       

    3. Employees who become qualified during the summer of 1992 or prior to November 1, who are willing to accept alternative assignments, and who are approved by the Superintendent or his designees and the president of the association or his designee, provided

    that the retirement date will be the earliest date upon which the employee satisfies the established eligibility, requirements, such dates not to extend beyond November 1, 1992."

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

19. A collective bargaining agreement must be construed to give effect to the intent of the parties by whom it was made, and the circumstances existing at the time it was made should be looked into to ascertain the intent", Pekar v. Local Union No. 181, 311 F.2d 628, 636 (6th Cir. 1962). The United States Supreme Court has frequently had occasion to address the issue of interpreting collective bargaining agreements and has stated "The law of labor agreements cannot be based upon abstract definitions, unrelated to the context in which the parties bargained . . ." NRLB v. C & C Plywood Corp. 385 U.S. 421, 17 LEd 2d.486, 87 S.Ct. 559. The Court has also stated "in our role of developing a meaningful body of law to govern interpretation of collective bargaining agreements, we think special heed should be given to the context in which collective bargaining agreements are negotiated, and the purpose they are intended to serve", United Steel Workers of America v. American Manufacturing Co., 363 U.S. 564; 80 S. Ct. 1343, 1346; 4 LEd 2d. 1403, 1406 (1960). Thus, it can be said that the paramount question in the interpretation of collective bargaining agreements is the intent of the parties, and the collective bargaining agreement should be literally construed so as to implement the parties' intent, Principles of Contract Interpretation; Interpreting Collective Bargaining Agreements, Grenig, Jay E. 16 Capitol University Law Review 31, and Acheson v. Falstaff Brewing Corp., 523 F.2d. 1327 (9th Cir. 1975).

    
    

20. The parties to the collective bargaining agreement are the union, which is the recognized bargaining agent for a certain group of employees, and the employer. Section 447.203(11) and (12) Fla. Stat. and Section 447.309 Fla. Stat. Petitioner's name appears nowhere in the collective bargaining agreement.

    It is submitted that one purpose of collective bargaining is to avoid thousands of individually negotiated contracts between an employer and workers in a certain group. That purpose would be frustrated if each individual who is a member of a bargaining unit would be allowed to interpret the collective bargaining agreement in their own way. Indeed, Courts have recognized that not every member of a bargaining unit would be pleased with the arrangements negotiated by the union on their behalf, Ford Motor Co. v. Huffman, 345 U.S.

    330, 338; 73 S. Ct. 681, 686, 97 LEd 1048, where the Court stated: "The complete satisfaction of all who are represented is hardly to be expected. A wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents subject always to complete good faith and honesty of purpose in the exercise of its judgement". It has also been said that it cannot be determined if certain language is clear and an ambiguous without looking at the context of that language. "It is sometimes said that extrinsic evidence cannot change the plain meaning of a writing, but meaning can almost never be plain except in context . . . Any determination of meaning or ambiguity should only be made in the light of the relevant evidence of the situation and relations of the parties, the subject matter of the transaction , preliminary negotiations and statements made therein. Usages of trade, and the course of dealing between the parties . . . " Restatement (second) of Contracts, Section 212, Comment b.

    
    

21. In this case, the intent of the parties can be determined by considering subsequent writings and agreements between the parties. Transportation Communication Employee's Union v. Union Pacific R.R. Co., 385

    U.S. 157 at 160-161 (1966); Bal Harbor Shops, Inc. v. Greenfield and Crosby Co., Inc., 274 So.2d 13 (Fla. 3d DCA 1973).

    
    

22. Vacancies had to be created before the start of the 1992/93 school year. The $8,500 bonus was designed to help create those vacancies. In fact, the figure of $8,500 was arrived at due to the calculations that that sum was the average amount the Board would have had to have paid in unemployment compensation to laid off teachers. It is uncontroverted that the Petitioner's retirement in February or March of 1993 would not have helped the school board to avoid the lay offs at the start of the 1992/93 school year. Thus, Petitioner's request to receive the bonus is inconsistent with the meaning of the collective bargaining agreement.

    
    

23. Petitioner argues that if there is any lack of certainty in the language of the collective bargaining agreement, then the doctrine of Fortius Contra Proferentem should be used, and the collective bargaining agreement should be construed in her favor. The doctrine construes language drafted by one party to a contract in favor of the other party. However, Petitioner is not technically a party to that agreement, and the doctrine does not apply in this case. See Northwest Administrators, Inc. v. B.V. and B.R., Inc., supra. The correct intent of the March 11 amendment was clarified by the May 27 amendment, not changed by it.

    
    

24. Finally, Petitioner's right to receive the $8,500 bonus had not vested when the second Amendment to the Agreement was approved. She was not eligible to retire on May 27, when the amendment was passed. The contractual language on which she relied was not due to go into effect until July 1, 1992. Petitioner has made no claim of estoppel in relying on what she perceived as a promise to her upon which she relied to her detriment. See: Jackson v. TWA, 457 F.2d 202 (2nd Cir. 1972) where a provision in a pension plan that had previously allowed employees to withdraw certain benefits in cash, was taken away for those individuals still employed by the company. The Court found that this was a

permissible modification, even without the consent of the affected employees. Therefore on May 27, the collective bargaining agreement could alter any benefit to which Petitioner thought she might be entitled in February or March of 1993.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application to participate in the early

retirement incentive bonus program for the school year 1992 should be DENIED.

DONE and ENTERED this 24th day of December, 1992, in Tallahassee, Florida.

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1992.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1,2,3,4,5,6,7,8,11,12,13

Rejected: As against the greater weight of evidence: paragraphs 9,10,14 Proposed findings of fact submitted by Respondent.

Accepted in substance: paragraphs 1-17

COPIES FURNISHED:

Louis Kwall, Esquire GROSS & KWALL

133 North Fort Harrison Avenue Clearwater, Florida 34615

Bruce P. Taylor, Esquire Pinellas County School Board Largo Administration Building

301 Fourth Street, S.W. Post Office Box 2942 Largo, Florida 34649

A. J. McMullian, III, Director Division of Retirement

Cedars Executive Center, Bldg. C. 2639 N. Monroe Street Tallahassee, Florida 32399-1560

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Sidney H. McKenzie, Esquire General Counsel

Department of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. J. Howard Hinsley, Superintendent Pinellas County School Board

P.O. Box 4688

Clearwater, Florida 33518

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

=================================================================

SCHOOL BOARD

OF PINELLAS COUNTY, FLORIDA

BARBARA BATES,

Petitioner,

vs. DOAH CASE NO. 92-004348

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA,

Respondent.

/

FINAL ORDER

WHEREAS, BARBARA BATES requested of the SCHOOL BOARD OF PINELLAS COUNTY,

FLORIDA, that she be permitted to retire on or about February 1, 1993, and receive a retirement incentive in the amount of Eight Thousand Five Hundred Dollars ($8,500) for so doing, and

WHEREAS, at a regularly scheduled meeting, the SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA, declined to grant said request, and

WHEREAS, BARBARA BATES, thereupon requested an Administrative Hearing on the issue of her entitlement to receive the Eight Thousand Five Hundred Dollar ($8,500) retirement incentive, and

WHEREAS, an Administrative Hearing was held on November 17, 1992, before Daniel Kilbride, Hearing Officer of the Division of Administrative Hearings, and

WHEREAS, the Hearing Off Officer's Recommended Order, together with the transcript and exhibits of the case, the Petitioner's Exceptions to the Recommended Order and each side's proposed Findings of Fact, Conclusions of Law, and Supporting Argument, have been carefully reviewed, it is

ORDERED AND ADJUDGED that petitioner's Exception Number 1 to the Hearing Officer Recommended Order is DENIED because the cited testimony is not inconsistent with the Hearing Officer's Finding of Fact Number 11, and it is further

ORDERED AND ADJUDGED that petitioner's Exception Number 2 is accepted, but only to the extent the Hearing Officer's Finding of Fact suggests that no other individual besides BARBARA BATES applied to receive the retirement incentive after the start of the 1992-93 Fiscal Year, based on the citations to the record contained in Petitioner's Exception Number 2, but the Hearing Officer's Finding of Fact is otherwise accepted and it is noted that there is no indication in the record that any individual other than BARBARA BATES indicated that they felt entitled to receive the Eight Thousand Five Hundred Dollar ($8,500) retirement incentive at any time throughout the 1992-93 school year, and it is further

ORDERED AND ADJUDGED that Petitioner's Exception Number 3 is rejected based on the testimony of Jade Moore, on Pages 67 and 68 of the transcript, and Respondent'S Exhibit 6. it is further

ORDERED AND ADJUDGED that Petitioner's Exception Number 4 is rejected as being inconsistent with the Hearing Officer's factual determination of the intent of the parties as to the meaning of the collective bargaining agreement amendments, as set forth throughout the Hearing Officer's Recommended Order, and it is further

ORDERED AND ADJUDGED that the Hearing Officer's Recommended Order is otherwise hereby accepted, adopted and incorporated herein in its entirety, and the request of BARBARA BATES to receive an Eight Thousand Five Hundred Dollar ($8,500) retirement incentive is hereby DENIED.

Any party adversely affected by this Order shall have the right to appeal to the second District Court of Appeals in Lakeland, Florida, by filing notice of intent to do so with the clerk of that court within thirty (30) days of this date.

DONE AND ORDERED on this the 24th day of March, 1993 in Largo, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

Attest: Ex-office Secretary

Docket for Case No: 92-004348

Orders for Case No: 92-004348