and ) CASE NO. 76-707
) PERC No. 8H-CA-764-1058 MARION EDUCATION ASSOCIATION, )
Charging Party. )
This cause is before the undersigned based on the parties' stipulations of fact which were agreed upon on August 18, 1976.
For Public Rodney W. Smith, Esquire, Staff Attorney for Employees Patricia A. Renovitch, Acting General Counsel Relations 2003 Apalachee Parkway, Suite 300
For Pattillo, MacKay and McKeever, P.A. Respondent: by John P. McKeever, Esquire
The parties were allowed 20 days following receipt of the record herein in which to file a brief with the undersigned. Included in the stipulation, the parties expressly waived the holding of a hearing herein and agreed to file a brief directly to the undersigned which along with the charge, the complaint and notice of hearing, and the attached exhibits and joint exhibits, constitute the entire record for the purpose of disposition of the instant case. The stipulation of facts are as follows:
The Marion County School Board is a public Employer within the meaning of Section 447.203(2) of the Public Employees Relations Act, (the Act hereinafter).
The Marion Education Association, hereinafter called MEA, is an employee organization within the meaning of Section 447.203(10) of the Act.
The school superintendent is the chief executive officer of the Marion County School Board within the meaning of Section 447.203(8) of the Act.
On or about April 9, 1975, the MEA was certified as the exclusive bargaining representative for all regular instructional full-time employees of the Marion County School Board (see proposed Joint Exhibit number 1).
On an unspecified date in May, 1975, the Marion County School Board, through its agent or representative school superintendent, as referred to in paragraph three above, and the MEA commenced negotiations aimed at reaching a collective bargaining agreement for the 1975-76 school years.
On August 20, 21 and 22, 1975, the afore-captioned parties participated in a special master hearing to resolve certain issues that remained in dispute between the parties.
Among the items declared an impasse and submitted to the special master procedure was an MEA proposal which dealt with "reduction in personnel" (layoff and recall policies).
On or about October 22, 1976, the special master, Malcolm J. Hall, after considering both oral and written arguments by the MEA and the superintendent, submitted a recommended decision to the Commission pursuant to Commission Rule 8H-5.13.
The special master's recommendation (see Joint Exhibit number 2) and findings contained a recommended policy dealing with layoff and recall of Respondent's unit employees as described in Joint Exhibit number 1.
On October 30, 1975, pursuant to Commission Rule 8H-5.13, the superintendent formally rejected the special master's recommendation as to faculty layoff and recall procedure.
On November 10, 1975, a public hearing was held pursuant to Section 447.403(2)(c)(3) of the Act and Commission Rule 8H-5.14 at which time the MEA presented argument requesting that the school Board adopt the special master's recommendations regarding layoff and recall of faculty.
On November 17, 1975, Respondent, pursuant to Section 447.403(c)(4) of the Act, adopted, over the objections of the MEA, a contract which omitted any specific reference to layoff and recall procedure. At that meeting, the Respondent directed the Superintendent to prepare and present for their later consideration, policies respecting reduction in force.
The contract adopted by Respondent on November 17, 1975, was submitted to and ratified by the MEA and on December 9, 1975, Respondent and the MEA entered into a collective bargaining agreement. Said agreement contained no express provision dealing with the subject of layoff and recall (see Joint Exhibit number 3).
Prior to March 16, 1976, Respondent maintained and published, at all times material herein, policies respecting retention and termination of personnel. Said policies were set forth in Sections 5.34(1)-(3), 1975-1976, of the Respondent's publication of the Policies and Procedures, but did not specifically address terminations occasioned by reductions in force. (See Joint Exhibit number 4). In late February, the superintendent recommended and on March 16, 1976, the Respondent adopted, in regular session, the layoff and recall policies by adding Sections 5.34(4)(1)(a) and 5.34(4)(1)(b) to the Respondent's Policies and Procedures (see Joint Exhibit number 5).
At the aforementioned March 16, 1976, meeting of the District School Board, the representative of the MEA, Grace Trice, objected to the unilateral adoption of the layoff and recall policies and requested that the Respondent
negotiate with MEA concerning the implementation of any new layoff and recall policy Notwithstanding this request, the Board adopted the new layoff and recall policy.
It is stipulated and agreed that this stipulation, including the above stipulated exhibits, which are a part hereof, shall constitute the record for the purposes of disposition in this cause and as contemplated in Commission Rule 8H-4.15(a). Each party hereto waived the hearing required by Section 447.503(3)(a) of the Act. Each party may file a brief with the hearing examiner within twenty (20) days from the date of notification by the Hearing Examiner of his receipt of the record.
The sole issue presented for decision is whether or not Respondent committed an unfair labor practice within the meaning of Section 447.501(1)(a)(c) of the Act by unilaterally adopting a layoff and recall procedure during the term of the collective bargaining agreement in existence between Respondent and the Charging Party.
The General Counsel takes the position that neither a broad general management perogative clause such as Article XI, Section 1, nor a "zipper clause" such as Article XI, Section 4 of the collective bargaining agreement, excuse an employer from its continuing obligation to bargain over mandatory subjects of bargaining which as the General Counsel urges, layoff and recall policies are. Respondent on the other hand takes the position that Article XI, Sections 1 and 4 of the parties' collective bargaining agreement in effect expressly reserves to the School Board the right to "implement such layoff and recall policies as are not inconsistent with any other express provisions of the collective bargaining agreement".
The agreement approved by the parties and which is now in effect contain the following management rights provision:
Section 1: It is expressly understood and agreed between the Association and the Board that the right to direct employees of the Board to hire, promote, transfer, assign and retain employees and to suspend, demote, discharge or take other disciplinary action against employees subject to only express provision respecting such matters in the agreement, shall be solely and exclusively within the responsibility of the Board subject to provisions of state regulations and the laws of Florida, and the United States.
Section 2: It is expressly understood between the Association and the Board that the right to relieve employees from duty because of lack of work or for other legitimate reasons, to maintain the efficiency of the Board, to determine the methods, means and personnel by which the Board's operations are to be con- ducted and to take whatever action may be necessary to carry out the mission of the Board in situations of emergency shall be solely and exclusively within the responsibi- lity of the Board. A "zipper" or wrap-up
clause contained in the agreement is as follows:
"It is expressly understood and agreed that this agreement constitutes the entire agree- ment between the parties with respect to wages, rates of pay, hours of employment and other conditions of employment for the affected employees "
Another specific provision of the agreement is that:
"The determination of any question with respect to wages, rates of pay, hours of employment or other conditions of employment not expressly determined by this agreement shall be deemed to be within the sole autho- rity of the Board as the managing agent for the public school, subject to the provisions of state regulations, the laws of Florida and the United States."
As noted in the stipulations of fact, on March 16, 1976, over objections of MEA representatives, the School Board adopted policies respecting retention and termination of personnel occasioned by reduction in force. Thus the instant unfair labor practice charge followed.
Section 447.209, F.S., give public employers the right to unilaterally determine the purpose of its constituent agencies, to set standards, exercise control, take disciplinary action for cause and relieve employees from duty due to lack of work or for other legitimate reasons. A proviso to that section provides that employees are not precluded from raising grievances where decisions have the practical consequence of violating terms and conditions of any collective bargaining agreement in force or any career service regulation. An examination of the contract negotiations in this case reveal that the Charging Party's initial contract proposal contained a provision on layoff and recall. This position was maintained by the Charging Party throughout negotiations and was an outstanding issue when an impasse was declared and the parties entered the special master's proceedings. At that stage, the Charging Party reiterated its affirmative position on layoff and recall however Respondent's chief executive recommended rejection of the special master's report which was favorable to the Charging Party's provision respecting layoff and recall. At the public hearing concerning the rejection of the special master's report, the legislative body of the public employer decided to reject any layoff and recall policy. Thereafter the contract was submitted to the unit employees and after ratification, was put into effect.
It is undisputed that the agreement as approved by the Board and the Charging Party contained a very broad "management rights" provision. Said provision provided among other things that the Board had the right to relieve employees from duty because of lack of work or for other legitimate reasons to maintain the efficiency of the Board's operations .... A zipper clause provided inter alia that the agreement constituted the entire agreement between the parties with respect to wages, rates of pay, hours of employment and other conditions of employment for the affected employees .... Finally, the contract contained a specific provision that in essence provided that the Board had the
sole authority to determine any question with respect to wages, rates of pay, hours of employment, or other conditions of employment not expressly determined by this agreement subject of course to the provisions of state regulations, the laws of Florida and the United States.
After careful study of the controlling statutes and the bargaining history for the parties in question, the undersigned is constrained to conclude that the Respondent's unilateral adoption of a layoff and recall procedure in the instant case is not violative of Sections 447.501(1)(a)(c), F.S. It is true, as the General Counsel urges, that the NLRB and the federal courts have long recognized that any alleged waiver by a union of its statutory right to be consulted concerning wages, hours and terms and conditions of employment must be clear and unmistakable. Further, the mere omission of a collective bargaining agreement to mention a mandatory bargaining subject does not free the parties from their statutory obligation to bargain thereon so as to permit a party to act unilaterally on a subject in the private sector. However, section 447.209, F.S., and the contractual provisions agreed to by the parties in the instant case evinces that both sides presented all of their main arguments in support of and for rejection of layoff and recall procedure. The Respondent, at all times discussed the matter forcefully with the union presenting its arguments and both agreed upon the inclusion of a provision which, in the opinion of the undersigned, authorized it to be the sole arbiter of any determination of questions respecting wages, rates of pay, hours of employment or other conditions of employment not expressly determined by the agreement. Armed with such a provision, and the broad sweep of authority granted Respondent in Section 447.209, F.S., the undersigned is forced to conclude that its actions in the unilateral implementation of a layoff and recall procedure did not violate the Act as alleged in the administrative complaint. Based thereon, I shall therefore recommend that the complaint be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action.
The parties were properly noticed pursuant to the notice provision of Chapter 447, Florida Statutes.
The Marion County School Board is a public employer within the meaning of Section 447.203(2) of the Act.
The Marion Education Association, is an employee organization within the meaning of Section 447.203(10) of the Act.
On April 9, 1975, the MBA was certified as the exclusive bargaining agent for all regular full-time employees of the Marion County School Board.
On November 17, 1975, Respondent adopted a collective bargaining agreement which was submitted to and ratified by the MEA on December 9, 1975, which contained no express provisions dealing with the subject of layoff and recall.
The Respondent's adoption on March 16, 1976, of layoff and recall policies and procedures and their inclusions in the parties' collective bargaining agreement is not violative of Chapter 447.501(1) and (a) and (c) of the Act, in view of Article XI, Section 4, of the parties' collective bargaining agreement and Section 447.209(5), Florida Statutes.
In view of the above findings and conclusions of law, I therefore recommend that the complaint be dismissed in its entirety.
DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida.
JAMES E. BRADWELL
Rodney W. Smith, Esquire Staff Attorney for Patrica A. Renovitch Acting General Counsel
Pattillo, MacKay and McKeever, P.A. by John P. McKeever, Esquire
Lenard A. Carson, Chairman
