STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
OSCEOLA CLASSROOM TEACHERS )
ASSOCIATION, )
)
Employee Organization, )
)
and ) CASE NO. 76-659
) SCHOOL BOARD OF OSCEOLA COUNTY, )
)
Public Employer. )
)
RECOMMENDED ORDER
A hearing was held pursuant to notice in the above styled cause on June 1 - 2, 1976 in the County Commission Chambers of the Osceola County Courthouse, 12 South Vernon Street, Kissimmee, Florida before Stephen F. Dean, the duly designated Hearing Officer of the Division of Administrative Hearings.
STATEMENT OF CASE
This matter came on to be heard upon the allegations set forth in the Complaint filed by the General Counsel of the Public Employees Relations Commission. Request for formal hearing was made by answer to the complaint and the matter referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Chapter 120, F.S.
APPEARANCES
Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida
For the Employee Organization
Norman J. Smith, Esquire Brinson & Smith, P. A. Post Office Drawer 1549 Kissimmee, Florida 32741
Austin Reed, Esquire
Public Employees Relations Commission 2003 Apalachee Parkway
Tallahassee, Florida
MOTIONS
The Respondent, Employer, filed a Motion to Dismiss which raised the following issues:
Should Paragraphs 10(A), (B), (D), (E), (F),
(G), (H), (I), (K), and Paragraphs 11(A) and
(B) be dismissed on the basis that the alle- gations contained therein are not founded on the charges amended charges filed by the charging party and said allegations, having been brought sua sponte by the Acting General Counsel of the Public Employees Relations Commission, are authorized?
Should the allegations of paragraphs 10(A),
(B) and paragraph 11(A) be dismissed on the basis that the employees involved are not members of the bargaining unit and therefore not represented by the charging party?
The hearing officer has considered the complaints filed by the Acting General Counsel of the Public Employees Relations Commission in comparison with the charges made by the charging party. The third paragraph of the amended charge by the charging party alleges that since August 15, 1975, the Respondent has refused to negotiate certain terms and conditions of employment and has unilaterally adopted a schedule of salary supplements. Paragraphs 10(A), (B), (C), (D), (E), and (J) relate to the unilateral adoption of salary schedules although several of the paragraphs do not relate to the adoption of a schedule of salary supplements. This is, however, within the scope of the charge originally filed by the charging party. Paragraphs 10(F) and (H) relate specifically to the refusal of the Respondent to negotiate as alleged in the third paragraph of the amended charge. Paragraph 10(G) relates not only to the general refusal to negotiate as alleged in the third paragraph of the amended charge, but also to the first paragraph of the amended charge. Having found the afore-stated paragraphs of the complaint to be within the scope of the amended charges filed by the charging party, the hearing officer recommends that the afore-stated paragraph not be dismissed.
The hearing officer finds that paragraph 10(K) and paragraphs 11(A) and (B) of the complaint do not relate to the refusal to negotiate or the unilateral adoption of salary schedules. Paragraph 10(K) alleges the solicitation of information and assistance indirectly from unit members and without dealing with or through the charging party for the purpose of preparing Respondent's future bargaining proposals. Although the allegations relate superficially to teaching supplements, they do not relate to the unilateral adoption of salary schedules, or the refusal to negotiate by the Respondent. Paragraph 11(A) and (B) of the complaint allege attempts by the Respondent to undermine the exclusive bargaining representative of the employees. The afore-stated paragraphs of the complaint are beyond the scope of the charges originally filed by the charging party.
While latitude is granted the General Counsel to investigate the allegations of unfair labor practices as presented in charges filed by the charging party, the General Counsel's office is not free to institute charges sua sponte. Having found that paragraphs 10(K), and 11(A) and (B) are beyond the scope of the charges originally filed by the charging party, the hearing officer would recommend that they be dismissed.
The second issue raised above turns upon whether adult education teachers are within the bargaining unit. The unit for the purposes of collective
bargaining within the meaning of Section 447.307(4) of the Public Employees Relations Act is stated in the General Counsel's complaint as follows:
"Teachers who are regularly employed, cer- tificated personnel except those specifically excluded. Included are certificated class- room teachers, guidance counselors, libra- rians, school psychologist, vocational specialist, and job-entry coordinators, but excluded are superintendents, principals, deputy superintendent for instruction, director of administration, director of operations, director of curriculum and re- search, director of vocational education and planning, director of special education, director of personnel and community rela- tions, audio-visual coordinator, coordinator of career education, coordinator of pupil personnel, reading coordinator, secondary supervising principals, elementary super- vising principals, full-time assistant principals, part-time administrative assistants, director of finance, coordinator of business affairs, coordinator of food services."
The position of adult education teachers is not mentioned in either the inclusions or exclusions of the bargaining unit defined above. The question therefore becomes whether adult education teachers are "regularly employed certificated personnel". Without the taking of evidence with regard to the qualifications and characteristics of employment of adult education teachers it is impossible to determine whether adult education teachers are "regularly employed certificated personnel". Therefore, the Motion to Dismiss these charges is dependent upon a finding of fact and the preliminary Motion to Dismiss should be denied and a discussion of the actual findings will be presented below.
In addition, to prevent the necessity of a rehearing the hearing officer has considered the allegations contained in paragraph 10(K) and paragraphs 11(A) and (B) of the complaint in the body of the recommended order should the commission take exception to the hearing officer's recommendation of dismissal.
The parties prior to commencement of the hearing stipulated to the allegations as contained in paragraphs 1 - 9 of the complaint filed by the General Counsel with the following corrections in paragraph 5:
John Strickland is corrected to read Jack Strickland.
Jack Strickland is designated as School Board negotiator/director of personnel.
Burt Chisem is designated School Board negotiator/director of administration.
John Graham Sugg's designation as finance officer is amended to read director of finance.
CONCLUSION OF LAW AND FINDINGS OF FACT
To facilitate consideration of the multiple issues raised in the General Counsel's Complaint, the Findings of Fact and Conclusions of Law will be presented following each of the stated issues.
ISSUE I
Did Respondent unilaterally, without prior notice to, without bargaining with, and without the consent of the charging party, modify or terminate the experience incre- ments which had been in effect for all adult education teachers and reduce the hourly wage paid to adult education teachers; and, if so, were said actions an unfair labor practice?
FINDINGS OF FACT
The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit.
The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
CONCLUSIONS OF LAW
The Hearing Officer having factually found that adult education teachers are not within the bargaining unit, the modification or termination of experience increments and the reduction in the hourly wage would not be an unfair labor practice.
ISSUE II
Did Leon T. Hobbs, through his memorandum of October 22, 1975, by making it known that adult education salary reductions were linked to collective bargaining negotiations still in progress, commit an unfair labor practice?
FINDINGS OF FACT
A copy of the memorandum of Leon T. Hobbs was introduced and received as Exhibit 5. This memorandum deals with the reduction in adult education salaries based upon computation of the adult education salary on a workday of eight (8) hours in 1975-76 as opposed to six (6) hours as previously computed. Hobbs' memorandum was distributed to all adult education teachers. The reduction had already occurred prior to publication of the memorandum. Therefore some explanation of this reduction had to be made. Leon T. Hobbs as director of adult education, was part of the Respondent's management. His memorandum stated in part as follows:
"At this point in time last year, your hourly rate was $ , but it is now $ (your base day-salary divided by 196 days times eight (8) hour day). Some of you have expressed your disapproval of this action and I can fully understand this temperament. It appears that until the issues in collective bargaining are resolved, we will continue to adhere to this salary schedule. If the workday is reduced, or the base salary is increased, you will be eligible to receive
an addition to your adult education rate. I will do everything that I can to see that our program receive's the support it deserves." (emphasis supplied)
Adult education teachers' salaries were computed on the workday of regular teachers. The hours of the regular teachers' workday were under negotiation. When considered as a part of the whole paragraph the emphasized statement above made by Mr. Hobbs is a statement of fact which is explanatory of the reduction which had been affected. The statement by Mr. Hobbs does not have a chilling or threatening effect.
CONCLUSIONS OF LAW
Based upon the findings of fact that the memorandum by Mr. Hobbs was an explanation of a salary reduction which had already been affected, the Hobbs' memorandum and its publication was not an unfair labor practice. Further, having found with regard to ISSUE I above, that adult education teachers were not a part of the bargaining unit, the publication of the memorandum and its distribution to adult education teachers would not be an unfair labor practice.
ISSUE III
Was the alteration, modification, termination,
or similar charge in teaching supplements for middle school band directors and middle school intramural directors unfair labor practice?
FINDINGS OF FACT
The positions of middle school band directors and directors of intramural athletics were deleted by the school board in rearranging the academic program of the middle schools for the 1975-76 year. These positions were eliminated in order to implement the shift from the junior high concept to the middle school concept. Discussions between the administration and the principals of the middle schools on the elimination of these positions had been carried on in the latter portion of the school year 1974-75. The position of middle school band director had been a carry-over from the junior high school marching bands which also had been eliminated. The position of middle-school band director was therefore not needed, and the elimination of the position indicated a shift in the philosophy of music education in the middle school in which all students would be exposed to various types of musical instruments throughout the year. The elimination of the position of middle school intramural director was based on similar considerations.
CONCLUSIONS OF LAW
The determination of academic programs to be implemented or deleted is one which rests solely with the superintendent and board of education. No evidence was presented that the implementation or deletion of academic programs were an appropriate subject of collective bargaining either by custom or by agreement of the parties. The evidence indicates that rather than eliminating a salary supplement, the function for which the supplement had previously been paid was eliminated. The elimination of a function or position rests solely within the perrogative of the Respondent, therefore, the elimination of the positions of middle school band director and middle school intramural directors was not an unfair labor practice.
ISSUE IV
Was the unilateral institution of changes by the Respondent in teaching supplements for coaches without prior notice to, bargaining with, or consent of the charging party an unfair labor practice?
FINDINGS OF FACT
The position of assistant track coach at St. Cloud High School was changed to a ninth grade basketball coaching position and the position of boys' swimming coach at St. Cloud High School was changed to an assistant wrestling coaching position. At Osceola High School the positions for two assistant swimming coaches were combined to provide the position for one head swimming coach. Five new coaching positions were established county-wide; three for girls sports, one for assistant wrestling and one for cross-country. The alteration in coaching positions for the school year 1975-76 was dictated in part by the school board's decision to comply with federal guidelines by providing a more balanced athletic program for both male and female students within the Osceola County School system. The situation presented with the alteration of the coaching supplements is exactly the same as that presented
above in the deletion of the middle school band directors and the middle school directors of inter-murals. The evidence does not support a fact that there was a change in salary supplements but that the positions for which the supplements had been paid were deleted and new positions created as a result of a decision by the Respondent to change the academic program within the Osceola School system. No evidence was presented that the question of maintenance of coaching positions was an appropriate subject of bargaining either by agreement of the parties or by custom.
CONCLUSIONS OF LAW
As stated in the Conclusions of Law in ISSUE III above, the determination of academic program is a matter which lies within the discretion of the Respondent. In the absence of some evidence of an agreement of the parties to negotiate the addition or deletion of positions relating to shifts in academic programming or a custom of negotiating such matters, there is no requirement that these subjects be open to collective bargaining. Therefore, the hearing officer concludes that the Respondent's alteration of these coaching positions is not an unfair labor practice.
ISSUE V
Did Respondent solicit information and assistance concerning teaching supplements directly from unit members without dealing with or through the charging party for the purposes of preparing Respondents' future bargaining proposals concerning teachers' supplements; and if so, was such solicitation an unfair labor practice?
FINDINGS OF FACT
The evidence presented in support of the allegations contained in Paragraph 10(K) of the complaint related to the events surrounding meetings of the coaching staff of Osceola County to determine what should be done regarding teaching supplements for high school coaches and what sports should be included in the athletic program of Osceola County. Some concern and discontentment among the high school coaches existed concerning the status of teaching supplements for coaching staff and the sports events included in the athletic program. Some of the coaches were unhappy with the proposals presented by the OCTA about which they felt they had not been consulted, and were equally unhappy with the program as it had been run by Respondent. The head football coach at Osceola High School, Claude Woodruff, contacted Mr. Paul Runge in the superintendent's office. Mr. Woodruff indicated that he wanted to present some research on coaching supplements and would contact persons throughout the state in order to develop some research on the type of supplements needed in Osceola County. Mr. Runge indicated that he would consider any such report presented to him. Having obtained some figures, Mr. Woodruff called a meeting of the coaching staff of Osceola County. The coaching staff of the various schools arrived at some recommendations regarding what sports should be included in the athletic program and a formula for computing the supplements for athletic coaching staff. Copies of this report were presented to Mr. Runge in the superintendent's office and to Mr. Reeder, chief negotiator for the OCTA on the same day. Upon presentation of the material to Mr. Runge, his only comment was that the report looked all right. The record clearly indicates that coach Woodruff approached Mr. Runge about submitting information with regard to
coaching supplements and the sports which should be included in the athletic program. The report given to the school board and OCTA by the coaches did not include the exact amounts of supplements but was a formula for computing the various supplements.
CONCLUSIONS OF LAW
The allegations of the complaint as contained in Paragraph 10(K) are that the Respondent, through its agent Paul Runge, solicited information and assistance directly from unit members. Contrary to the allegations, the evidence clearly shows that coach Woodruff initially contacted Mr. Runge about presenting him information regarding coaching supplements and that when the information was prepared and finalized by the coaches within the county that copies of the report were presented to both Mr. Runge and the chief negotiator for OCTA. The allegations in the complaint were not proven and the factual situation presented does not indicate an unfair labor practice on the part of the Respondent.
ISSUE VI
Did John Strickland threaten the loss of existing benefits to unit members absent an agreement on a new collective bargaining package?
FINDINGS OF FACT
The general counsel had sought to subpoena a newspaper reporter who had interviewed Mr. John Strickland and who had quoted Mr. Strickland as stating that in the absence of an agreement that members of the unit would lose their existing fringe benefits. The newspaper reporter in question filed a motion to revoke the subpoena which was denied by the hearing officer at hearing. The Hearing Officer gave the counsel for the General Counsel opportunity after the hearing to enforce the subpoena and to present the testimony of the reporter by deposition. The counsel for the general counsel sought to introduce the newspaper report at hearing and, it was not admitted into evidence because the reporter was not present and could not be cross-examined with regard to the article. Under the circumstances, in the reporter's absence, the article would be hearsay on which no finding of fact could be based. The counsel for the general counsel did not enforce the subpoena and submit the reporter's deposition. In the absence of the testimony of the reporter there is no competent evidence that John Strickland threatened the loss of existing benefits to unit members.
CONCLUSIONS OF LAW
In the absence of substantial and competent evidence by the general counsel that John Strickland, as an agent for the Respondent, threatened the loss of existing benefits to unit members, there is no proof that the Respondent engaged in an unfair labor practice.
ISSUE VII
Did the Respondent, on or about August 21, 1975, fail and refuse to discuss proposals by the charging parties regarding mandatory
bargaining subjects to include wages for extra duties performed, and if so, was such refusal an unfair labor practice?
FINDINGS OF FACT
The evidence presented related to the proposal of the OCTA as presented in page 1 of Exhibit 13, paragraphs H and I. The Respondent's reply to the OCTA's proposal was that H and I were "management rights which were not for sale." Regarding the proposal made in paragraph H, William Coffman testified that a planning period for a teacher is a time during the normal workday when classes are not taught and during which the teacher is free to plan for other classes. No evidence was presented that teachers had been compensated in the past for she loss of a planning period. The thrust of the proposal contained in paragraph 4 is that a teacher who would be required to perform other duties during a planning period would receive the professional hourly rate for that period. This has the effect of compensating the teacher at twice the normal professional rate for the planning period. The position of Respondent, as implied by its response, was that a teacher having already been compensated for that period could be assigned duties as required by management and therefore this was a question of assignment of duties and not of wages.
Mr. Coffman further testified that curriculum development and similar school related planning is carried on outside the normal school year by educational staff prior to the commencement of the normal school year. The proposal of the OCTA is stated in part, "The board shall employ teachers for curriculum development and other school-related planning." This provision could have arguably bound the Respondent to employee members of the bargaining unit to perform these duties. No evidence was presented regarding who had performed these duties in the past, or whether who would perform these duties was an agreed upon subject of negotiation by the parties.
CONCLUSIONS OF LAW
Generally the employment of personnel and the assignment of duties to personnel are recognized as management rights. In the absence of evidence indicating that members of the unit had been compensated in the past for the loss of a planning period, or evidence that only members of the unit had been employed in curriculum development in similar school related planning, there is no basis to conclude that negotiations on these issues related to wages. In the absence of an agreement of the parties to negotiate on these two subjects or evidence of prior negotiation on these subjects, the hearing officer concludes that the Respondent's refusal to negotiate on these proposals is not an unfair labor practice.
ISSUE VIII
Was the submission by the Respondent to the special master of proposals concerning working hours, holidays and salaries which were less than the proposals which it had earlier made to the charging party during the course of collective bargaining, an unfair labor practice?
FINDINGS OF FACT
Respondent presented three separate package proposals to the OCTA.
The first was presented on July 28, 1975, the second on August 21, 1975, and the last presented to the special master on September 5, 1975. No evidence was presented that the charging party had accepted any part of either of the package proposals presented on July 28 or August 21, 1975. The OCTA also refused the Respondent's September 5 package.
CONCLUSIONS OF LAW
A keystone of the collective bargaining process is that neither party is forced to accept a proposal or agreement presented by the other side, but is only required to bargain in good faith. Policy therefore dictates that the submission of alternate proposals should be encouraged in order that a final agreement may be reached and impasse or deadlock avoided. The guidelines for negotiation were not introduced into evidence. In the absence of an agreement by the parties, to partial acceptance of proposals, the withdrawal of a proposal which has not been accepted in order that a new proposal may be submitted for consideration is not an unfair labor practice. Therefore, the presentation by the Respondent to the special master of proposals concerning working hours, holidays, and salaries which were less than proposals which the respondent had earlier made to the charging party would not be an unfair labor practice.
ISSUE IX
Was the rejection of a recommendation re- garding the selection of summer school teachers contained in the special masters' report which was substantially equivalent to the proposal made by the Respondent on August 21, 1975 an unfair labor practice?
FINDINGS OF FACT
As stated above, the respondent had presented three separate package proposals to the OCTA. The proposal presented to the special master on September 5, 1975 differed from the proposal presented to the OCTA on August 21, 1975. Therefore the proposal regarding the selection of summer school teachers presented on August 21, 1975 was a part of and limited by the the other proposals presented at that time. Similarly the proposals presented to the special master on September 5 were a part of and limited by the other proposals contained in that package.
CONCLUSIONS OF LAW
In the absence of a showing that the proposal presented to the Special Master and the proposal presented to the OCTA on August 21, 1975 were essentially the same, which is contrary to the evidence presented in this matter, it would not be an unfair labor practice for the Respondent to reject a proposal which was not presented to the Special Master on September 5, 1975. To reach any other conclusion of law would be inconsistent with the policy as discussed in Issue 8 above, to encourage the maximum flexibility in the submission of new proposals for consideration during negotiations.
ISSUE X
Was the unilateral modification and termi- nation of day-teacher experience increments without prior notice to or bargaining with or without the consent of the charging party an unfair labor practice?
FINDINGS OF FACT
Negotiations in this case commenced in April 1975. Respondent presented two separate package proposals to the OCTA prior to the Special Master's hearing. Both of the proposals contained salary proposals which would have implemented experience increments for 1975-76. These proposals were rejected. The salary proposal presented to the Special Master on September 5, 1976 deleted the payment of experience increments as indicated in the 1974-75 wage package. At the time the Special Master's hearing was held, the teachers had already returned to work. The first pay day for the teachers was approximately September 19, 1975. On September 16, 1975 the School Board acted to adopt a salary schedule which was the same as its proposal to the Special Master which OCTA had rejected. At that time the School Board and the OCTA were in the process of submitting financial data to the Special Master and awaiting his final report. By law the report of the Special Master was not due until after the first pay day. The School Board was required by law to adopt a salary schedule prior to the first pay day in order for the teachers to be paid.
The OCTA was aware of the Board's pending action in adopting a salary schedule and appeared at the Board meeting presenting its point of view prior to the board's action. Both parties were aware that whatever action the board took would be amendable depending upon the outcome of collective bargaining negotiations in arriving at he final contract. The failure of the Board to adopt a salary schedule on September 16, 1975 would have prevented the payment of the teachers for their first months work.
CONCLUSIONS OF LAW
In Hillsborough County School Board and Hillsborough CTA, DOAH Case No. 75-2079, the hearing officer held, under a different set of circumstances, that the unilateral setting of a wage by a school board which did not implement experience increments was per se an unfair labor practice. However, in the instant case there is a completely different set of facts which must be considered. The thrust of the Hillsborough Case, supra, is that a public employer cannot use statutory mandates as a shield to the unfair labor practice of unilaterally altering a condition of employment subject to negotiation during the process of collective bargaining. However, an employee organization cannot take advantage of statutory mandates which require action by a public employer by using such mandates as an anvil to hammer out an agreement.
The adoption of a salary schedule does not fix the salary schedule in light of subsequent collective bargaining agreements. Considering the facts in the instant case the public employer was required by law to adopt a salary schedule. The salary schedule which was adopted was the same proposed at the special master's hearing and which had been rejected by the public employee organization. As stated above, a keystone in collective bargaining is that an agreement may not be imposed on either side. Clearly, the public employer could not propose to the special master a salary plan. in which experience increments were not included, and subsequently adopt a salary schedule in which they were included. To require the public employer to adopt a salary schedule in which the experience increments were paid would be to force an agreement upon the
public employer. in an instance where the inability to pay the increments had been asserted. Respondent was at that time submitting financial data to the special master to support that position. Under these circumstances the public employer's unilateral adoption of a salary schedule which did not implement the experience increments was not an unfair labor practice. It should be noted that the issue presented to the Hearing Officer is not whether the Respondent had the ability to pay the experience increments, but whether in unilaterally adopting the salary schedule while awaiting the special master's report, the public employer was guilty of an unfair labor practice. To hold that the public employer was guilty of an unfair labor practice under the instant set of facts would be to deny the public employer the protections of Section 447.403, Florida Statutes, and would impose a settlement or partial settlement upon the Respondent.
ISSUE XI
Did the Respondent refuse to bargain with the charging party between the receipt of the special master's report on October 3, 1975 and the date of the legislative hearing on November 4, 1975; and if so, was such refusal an unfair labor practice?
FINDINGS OF FACT
Two meetings were held between the parties subsequent to receipt of the special master's report. The first was held on October 16, 1975 and the second on October 21, 1975. At the October 16 meeting the Respondent's negotiating team indicated that Respondent was willing to accept six or seven of the proposals of the special master, but that the Respondent would not discuss the other special master's proposals at that time. The OCTA indicated that it would accept the special master's report as presented and asked the Board to state its position with regard to the other twenty (20) recommendations of the special master. The Respondent's negotiating team refused to discuss the other twenty (20) recommendations. Prior to the October 21, 1975 meeting, by its letter dated October 17, 1975 (Exhibit 16), the School Board advised the OCTA of the recommendations of the special master which it rejected. The Respondent had rejected the twenty (20) recommendations of the special master which it had refused to discuss. At the final meeting between the parties on October 21, 1975 the OCTA reiterated its acceptance of the special master's report and the Board again refused to discuss any of the special master's recommendations except the six (6) which it had accepted. The OCTA did accept the Board's six
(6) proposals and the Board refused to discuss the twenty (20) rejected recommendations of the special master. The Board's position as stated in its letter, Exhibit 16, was that an impasse existed and the matter would be presented to the legislative hearing. Therefore, it did not wish to reveal the position which it would take before the legislative hearing.
CONCLUSIONS OF LAW
A comparison of the provisions of Section 447.403, Florida Statutes, with similar state acts, indicates that a special master's hearing is a process to assist the negotiating parties in arriving at a contract. The recommendations of the special master should be taken as a new point of departure for the resolution of unresolved issues in collective bargaining. Good faith bargaining would dictate both parties discuss the recommendations of the special master. Clearly, the intent of the statute is that these
discussions should be more than simple rejection or acceptance of the recommendations of the special master and constitute a new starting point for consideration of the unresolved issues of the parties. Under the statute the parties have up to fifteen (15) days within which to discuss their relative positions regarding the special master's recommendations upon the other party's invitation to reach a compromise position would be an unfair labor practice.
Further, Respondent's refusal to discuss its position because of the upcoming legislative hearing was without merit. Although the legislative hearing is a means of arriving at settlement of impasse items, this hearing is not an adversary proceeding. During the progress of negotiations both parties have relatively free access to the data and information of the other as it relates to their various proposals. It would be incongruous to deem the statutory method for resolving impasse an adversary proceeding. The refusal of either party to discuss their relative positions either by virtue of their intent to reject or accept the recommendations of the special master, is a refusal to bargain in good faith. Therefore, based on the foregoing Findings of Fact and Conclusions of Law the Respondent is guilty of an unfair labor practice.
Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining.
DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida
Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741
Austin Reed, Esquire
Public Employee Relations Commission 2003 Apalachee Parkway
Tallahassee, Florida 32301
Mr. Leonard Carson, Chairman
Public Employees Relations Commission 2003 Apalachee Parkway
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Oct. 29, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 29, 1976 | Recommended Order | Respondent should cease and desist from failing to enter into collective bargaining on request over mandatory items. |
