STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DUVAL COUNTY SCHOOL BOARD, )
)
Respondent, )
)
and ) CASE NO. 76-1477
) PERC No. 8H-CA-764-3134 DUVAL TEACHERS UNITED, FEA-FT )
AFL-CIO, )
)
Charging Party. )
)
RECOMMENDED ORDER
Pursuant to notice, the subject cause came on for hearing before the Division of Administrative Hearings' duly designated Hearing Officer, James E. Bradwell, on October 6 and 7, l976, 1/ in Jacksonville, Florida.
APPEARANCES
Appearing on behalf of the Charging Party: William H. Maness, Esquire
603 Florida Theater Building
Jacksonville, Florida 32202 Appearing on behalf of the Respondent:
Spiro T. Kypreos, Esquire Assistant City Counsel 1300 City Hall
Jacksonville, Florida 32202
Florida Public Employees Relations Commission: Richard T. Donelan, Jr., Esquire and
Tom W. Brooks, Esquire Staff Attorneys
2003 Apalachee Parkway, Suite 300
Tallahassee, Florida 32301
The Acting General Counsel of the Public Employees Relations Commission (hereinafter sometimes referred to as PERC or the Commission) issued a complaint and notice of hearing on August 25, pursuant to a charge filed by the Charging Party on July 27, copies of which were served on Respondent. The Respondent filed an answer denying commission of any unfair labor practices. In general, the issues raised by the pleadings was whether the Respondent violated Sections 447.501(1)(a) & (c) of the Public Employees Relations Act (herein called the Act). Additionally, Respondent's answer raises certain affirmative defenses which in essence supports its contentions that the items listed in the Acting General Counsel's complaint. Respondent's position is that those matters
alleged in the complaint involve rights which are vested in Respondent by Chapter 230, part 1, Florida Statutes and Section 447.209, Florida Statutes, and as such Respondent is precluded as a matter of law from negotiating those items contained in the complaint. Respondent's defense to the complaint allegations that it released to the press a salary proposal which had never been submitted to the Charging Party at the bargaining table and that thereby it bypassed and denigrated the exclusive bargaining representative of unit employees, is that any information provided the public through Respondent's agent was an exercise of its right of free speech pursuant to Section 447.501(3), Florida Statutes, and/or the legal duty imposed on Respondent by Chapter 119, Florida Statutes.
As to the remaining allegations, the Respondent avers that those items are matters which are inherently managerial in nature and involve matters of inherent managerial policy which can only be exercised unilaterally by Respondent to fulfill its constitutional duty. Particularly, the questions for decision are as follows:
Did Respondent engage in a course of conduct of surface bargaining by maintaining a fixed and unalterable position that certain subjects for bargaining including but not limited to employee transfer, discipline and discharge, seniority, teacher preparations, sick bank, class size, summer school assignment, field trips, disruptive student policy, student discipline and attendent registers are not negotiable.
Whether the Respondent interfered with and continued to interfere with, restrain and coerce its employees in the exercise of rights guaranteed them in Section 447.501(1) of the Act and thereby engaged in unfair labor practices within the meaning of Section 447.501(1)(a) of the Act by releasing to the press a salary proposal which had never been submitted to the Charging Party at the bargaining table and concerning which the Charging Party had no opportunity to negotiate; and whether Respondent, on July 22, through its agent, Andrew Knight, stated that teachers had lost a 6.25 percent because the union forced negotiations to an impasse, and thereby threatened unit employees for the conduct of their bargaining representative and the negotiation process in violation of 447.501(1)(a) of the Act.
Upon the entire record, upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted by the parties, I make the following:
FINDINGS OF FACT
Jurisdiction
The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act.
The Employee Organization Involved
The complaint alleges, the parties admit, and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. In addition, the complaint alleges, the Respondent admits, and I find that the Charging Party is now, and has been at all times material herein, a certified representative for the purposes of collective bargaining for all employees employed by the Duval County School Board in the following described unit:
INCLUDED: Classroom teachers: nursery, kindergarten, elementary (primary 1-3), elementary (intermediate 4-6), elementary (1-6), junior high (7-9), senior high
(10-12), driver education, exceptional (special education), remedial, resource (art, music, etc.), vocational-home econo- mics, vocational distributive, vocational agriculture, vocational trade and indus- trial, vocational technical, office educa- tion, industrial arts, manpower and diver- sified (DCT), guidance counselors, occupa- tional specialists, media specialists, specialists-other, instructional, TV instructor, other instructional (except administrative assistants).
EXCLUDED: Associate superintendents, general directors, directors, supervisors, coordi- nators, specialists, community school "coordinators", principals and assistant principals, and administrative assistants.
The Charging Party was certified as representative of the above named employees on March 24, 1975, following voluntary recognition by Respondent. The Charging Party and Respondent were parties to a collective bargaining agreement effective July 1, 1975, which expired June 30.
On March 16, Duval Teachers United's President, James W. Geiger (DTU) called Respondent's superintendent, Herb A. Sang and requested that collective bargaining for a successor agreement begin as soon as possible. Geiger suggested that bargaining commence during the first week in April which was rejected by Sang. After two other suggestions by Geiger, the parties agreed to meet on April 22, and the session opened with the introduction of the respective bargaining team members and an introductory statement by Robert B. Bates, Chief Negotiator for DTU. At the outset, Bates initially alluded to the fact that a few days prior, superintendent Sang had publicly attacked him as a "outside agitator and hired gun and that the DTU was coming to the table to pick the pockets of the taxpayers." Bates advised the Respondent's team that despite the public attack, mutual trust was essential to the negotiation process and that both sides should refrain from making such attacks in the future. Thereafter negotiations began by discussion of the ground rules which had been presented by Respondent and had been used in the previous year's negotiations.
The first ground rule proposal stated that each negotiating session would be scheduled at a mutually agreeable date, time and place which would be determined at the preceding session. Bates expressed reservations about daily scheduling in light of his commitment to negotiate an agreement in St. Louis, Missouri. After some discussion with DTU President Geiger, Bates agreed with the day to day scheduling rule as proposed by Respondent. Bates also advised Respondent's team that he would like to take a vacation sometime in July, if negotiations had not been completed by that time and that he would want to clear it with Respondent's team prior to scheduling any time during that month. Respondent voiced no objections to Bates' suggestions and indicated that hopefully an agreement would be consummated prior to June 30. Thereafter the parties agreed to meet on April 28, 29 and 30, for the purpose of clearing up ground rules and according to DTU, to proceed into negotiations on the union's
proposals. The parties met, as agreed, on April 28 and after three hours of discussion, the language of ground rules which had not been agreed to on April 22, was finalized. Andrew J. Knight, Respondent's chief negotiator, announced that since the ground rules stated that the parties' final proposals were to be submitted by May 10, and since all of the union's package was not in, no bargaining on proposals already submitted would occur until May 10. In this regard, the record reflects that approximately 80 percent of the DTU proposals had been submitted on April 28. When Respondent refused to commence substantive bargaining, the DTU team left the meeting with Bates advising the Respondent's team that DTU would resume bargaining when management submitted its proposals.
The remainder of the DTU's proposals were submitted on May 10. Respondent's team submitted five proposals to the DTU on May 11. The parties again met on May 12, at which time Respondent's chief negotiator advised Bates that the five proposals was its entire response to the DTU's package. When Bates complained about not receiving counter proposals as to all of its proposals, the Respondent's team advised DTU that it should not look forward to receiving responses to all proposals. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by Respondent. The parties agreed to meet the following day and they placed on the agenda proposals dealing with Discipline and Discharge, Tenure, Personnel Files, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer. When the parties met on May 13, and DTU attempted to negotiate concerning Discipline and Discharge, Personal Rights, Academic Freedom, and Transfer, Knight stated that these subjects were "inherent rights of management" and therefore nonnegotiable. Respondent's counter proposals on the other agenda items were those extracted from the previous years contract. Bates tried to schedule future sessions and was told by Knight that such scheduling could not be done in view of the language of ground rule 1. (See joint exhibit 4). Bates attempted to secure a commitment from Respondent that it would meet on Saturday, May 15, since he had a plane ticket on Friday that he would cancel in order to negotiate on that Saturday.
Knight responded that it would "probably be OK" but refused to categorically state that it would negotiate on the 15th because the strict interpretation of ground rules precluded such commitment a day in advance. The parties agreed to and met on May 14. On May 13, Bates attempted to place items the Respondent had declared nonnegotiable back on the agenda whereupon Respondent's negotiator insisted that agendas must be "mutually agreed to" and refused to put those items on the agenda. The following day, Bates again attempted to begin discussions of the DTU proposals that he wanted on the agenda and again Knight insisted that the DTU items were not on the agenda and therefore could not be negotiated. Near the close of the session and when it was too late for Bates to depart on his flight as scheduled, Respondent declined to meet on Saturday, May
The next session was held on May 19 and at that time Bates insisted that the ground rules did not provide for a mutually agreed to agenda as Respondent insisted and he (Bates) thereupon demanded that the alleged nonnegotiable items be placed on the agenda for that date. Since this item did not appear on the agenda prepared by Respondent for the 19th, Respondent refused to negotiate and Knight responded that the Board counters would be given on each issue as it came up on a "mutually agreed to agenda". The DTU team left the meeting and Bates replied that the DTU would return when management's proposal package was forthcoming.
On May 28, Knight and Geiger had a phone conversation in which the parties agreed to resume bargaining on June 3. Geiger questioned whether Knight and the remainder of the Board's team were serious about bargaining and Knight replied affirmatively and that they would move "immediately into their calendars". The parties met on June 3 at 5:00 P.M. at which time the Respondent presented the expired contract as its counter proposal package. No counter
proposals were given on any item in the union package which was not contained in the expired agreement. Bates again attempted to negotiate the alleged nonnegotiable items with no success. Knight replied that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been achieved pursuant to the ground rules and no mutually agreed to agenda had been set up. Knight advised however that the Board's team was willing to sit with the DTU's team but not to bargain. The parties eventually agreed to meet on June 8. At the outset, Bates advised the Board's team that the DTU was unavailable for negotiations from June 19 to June 22 because of schedule conflicts but that the DTU was available for five days preceding June 19. No agreements were reached on June 8 except an agreement to meet on June 14. On June 8, Geiger asked the Respondent's team whether it intended to predetermine bargaining concerning the calendar by its adoption of the 76-77 school year calendar which had been put into effect. The Board's response was that the calendar could be modified at the bargaining table respecting any dates that affected students. Thereafter they met daily from June 14 - 19. During this period, one agreement was reached on June 16, when a "salesman" article was signed. Thereafter Respondent maintained its prior stand on issues of summer school assignment, student discipline, and a fair treatment clause stating either that the subject items were inherent management rights or that they were matters which were nonnegotiable in that they "infringed student rights". Respecting the DTU's attempt to produce dialogue on a DTU proposal on fair treatment, Respondent made the comment that the union only represented incompetent teachers, and that competent teachers had no problems concerning the meaning of "fair and equitable". Knight said that if the union was in charge of student discipline, "the firing squad would come into existence", and that he would "take it all the way to the supreme court before this would ever go into a collective bargaining agreement". Other items such as disruptive student policy, school nurse, and evaluations were labeled nonnegotiable by Respondent. During the June 18 session, Respondent's team advised the DTU's team that any agreement reached thru negotiations after the expiration of the current agreement would not be retroactive and that if the DTU did not meet on Saturday, June 19, the Board "just might have to file an unfair labor practice charge." The parties met again on June 19, and the entire discussion centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put them into a contract. Near the end of the June 19 meeting, Respondent's team indicated that they desired to meet on Sunday, June 20, which was Father's Day. Bates declined, citing his previous commitment in Tampa to which the Respondent had been informed and when the Board's team insisted that a meeting take place on the 20th or 21st notwithstanding previous DTU commitments, the parties engaged in a lengthy discussion about both teams' failure to meet as scheduled. According to Bates, he was told that the Board's team was available to meet on Wednesday, June 23, and when Bates advised that the DTU's team would be available, Respondent's team indicated its availability. The DTU team, believing that a meeting was setup for Wednesday, June 23, arrived for the session at 9:00 A.M. but the Respondent's team did not appear. The next meeting was held on June 24, the following day. Geiger states that he advised Knight that the DTU's team wanted to commence serious bargaining at the next session and on this, he was assured by Knight that serious negotiations would occur.
Geiger received a memo from Knight stressing his version which in essence was that the June 24 meeting was solely to set a date, time and agenda, pursuant to the ground rules. (See GC Exhibit 4a). Knight, as evidenced by his memo, refused to bargain at the June 24 session, insisting that to do so would violate the ground rules since in his opinion, no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour, and officially reconvened after agreement pursuant to
the ground rules. Geiger commented that such a move was "silly" and that he thought Respondent was "playing games". The next session took place on June 25 which centered almost exclusively around a budget presentation by school board member, Mssr. Clemmons.
Respondent submitted its first counter proposals on salary on June 3, which was identical to the then existing current salary schedule. During his testimony, Kennedy admitted that that proposal was not submitted in earnest. Respondent's second salary proposal was submitted on July 1 which was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday i.e., June 26, and that they had expected it to be offered at the earlier sessions prior to July 1. At the July 2nd meeting, DTU requested from Respondent information regarding the employee benefits article it submitted to which Knight responded that "no cost estimates had been prepared and that DTU could work out the costs as easily as the Board could". Knight advised that the board was of the opinion that DTU did not feel serious about the Board's being able to afford the proposals and therefore no estimates were prepared.
Estimates however were provided at the next meeting which, according to Geiger, were prepared by Messr. Simmons, of the Board's team. In submitting them, he advised that they were not detailed estimates. Also discussed at the July 2nd meeting was the issue of the sick leave bank. The Board team expressed no objection in principle to the foundation of a bank but expressed its opinion that it was illegal. Then advised that such a bank existed in Dade County, Knight testified that he still questioned its legality since Kennedy had made inquiries of the Dade County School Board and when he inquired as to the authority for such a bank, he was told that it was not expressly sanctioned by any statute, rule or regulation. On July 1, Respondent's team requested the assistance of a mediator and DTU responded that on July 2, it had not objection to the appointment of a mediator. DTU expressed its opinion that the appointment of a mediator at that time was premature but that they had no objection based on the Respondent's commitment that they were really "ready to get down to meaningful bargaining". Geiger conversed with Bates about the DTU's availability during the following week whereupon they agreed that they would have their team there and would be at the bargaining table. The DTU's team cancelled its vacation plans and agreed to be prepared to negotiate the next week. Geiger testified that negotiations were carried on during the week July 5
- 9 and that it was a fruitless exercise in futility". On July 9, after the DTU's team was unable to obtain counter proposals from Respondent, and when they refused to schedule the next meeting date or to agree to any time after the 26th of July, a period to which Respondent had agreed to in view of the DTU's advance statements that it would be gone for the three week period during July 2 thru July 26, the Union declared impasse. Mr. Kazin, the mediator, indicated that of the two following weeks he was not available for one of those weeks since he would be out of town and the DTU's team suggested that the remaining week be spent to resume bargaining for the teacher aide unit. It should be noted that the DTU was certified to represent the regular unit in addition to the teacher aide unit and that Respondent's team was used to negotiate on behalf of the school board for both units. Geiger testified without contradiction, that Superintendent Sang had released to the press) a copy of what he termed to be "nonnegotiable issues". When the DTU's team asked Respondent's team for such a list, they were advised that no such list existed initially and after pressing for approximately three to four hours, Mr. Knight produced a list which coincided with the list which had been distributed to the press and to which Respondent indicated that it would refuse to bargain over. (See General Counsel's Exhibit 5, received in evidence and made a part hereof). No bargaining took place between the period July 9 thru August 2. Bargaining
resumed on August 3, at which time the DTU demanded that Respondent place on the table the salary schedule which had been released to the press by Respondent on July 22. Respondent refused to present the schedule which had never been submitted at the table. The demand was renewed at bargaining sessions on August
and 5 and it was finally submitted by Respondent on August 10. The schedule was unilaterally adopted by Respondent September 13. During the August 10 session, Bates questioned whether Kennedy and the remainder of the Respondent's team had the authority to negotiate issues reported to be nonnegotiable by Respondent. Kennedy admitted that while there was some overlap between management rights and working conditions, he refused to negotiate those areas.
A special master hearing was held on August 20 and his report was received by the parties on September 1. (See General Counsel's Exhibit #6). On August 21, negotiations resumed under a court order following the issuance of an injunction which was petitioned for against the Respondent for allegedly engaging in bad faith bargaining and against the Union for allegedly participating in unlawful strike activity. On August 21, the parties reached an agreement on the language on a discipline and discharge article, however the Respondent indicated that it would not include such agreement in the collective bargaining agreement but rather would append it to the contract. Messr. Kennedy of the Respondent's team advised that a transfer proposal would be included in the contract which was the first time that such a proposal had been introduced since negotiations started in April, if the Union accepted Respondent's proposal on discipline and discharge. The Union rejected the package as unacceptable following Respondent's notice that the agreed language was not for inclusion in the collective bargaining agreement. During a circuit court hearing on the progress of the parties' negotiations on August 27, DTU offered to accept school board language on two issues, grade reporting and court or jury duty. No further negotiations were held after September 9. A final package offer was made to DTU which was essentially the same package offer of August 21 with the exception of the transfer/discipline and discharge proposal and with a retroactive effective date of July 1. When this package was offered on September 9, the Respondent was at the same time rejecting the special master's report in toto.
As stated, in its answer, Respondent takes the position that it has not refused or failed to bargain collectively in good faith in that the items listed in the Acting General Counsel's complaint are items which are vested in Respondent by Chapter 230, Florida Statutes and Section 447.209, Florida Statutes and it is therefore precluded as a matter of law from negotiating said items. Section 447.209, F.S., gives public employers the right to unilaterally determine the purpose of its constituent agencies, to set standards, to exercise control, to take disciplinary action for cause and to relieve employees from duty due to lack of work or for other legitimate reasons. That statute goes on to read that employees aren't precluded from raising grievances where decisions have the practical consequence of violating terms and conditions of any collective bargaining agreement in force or any civil or career service regulation. It seems glaringly apparent therefore that the legislature foresaw instances wherein public employers and employee organizations would reach agreements on the very matters on which Respondent would urge that it has no obligation to include or bargain about. Collective bargaining as defined in the Public Employees Relations Act, Section 447.203(14) is: "the performance of the mutual obligations of the public employer and the bargaining agent of the employee organization to meet at reasonable times, to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employement, except that neither party shall be compelled to agree to a proposal or be required to make a concession unless
otherwise provided in this part". The undersigned could find no Florida cases in which this issue had been decided, however there are numerous federal and state cases in other jurisdictions in which collective bargaining has been defined by judicial and other administrative bodies. Section 447.203(14), F.S., is strikingly similar to Section 8(d) of the National Labor Relations Act, 29
U.S.C. 151, et-seq. Respondent does not dispute the fact that it approached the negotiation table with a fixed and preconceived determination on its part to never reach agreement on those issues listed in the complaint filed herein. It maintained this position in the negotiations without doing anymore than listen to Union arguments on those points and by so doing it engaged in surface bargaining on those as well as other issues, without any attempt to explore the arguments thereon with a sincere desire to reach agreement on them. Court decisions too numerous to cite here have stated that "good faith bargaining takes more than mere surface bargaining or "shadow-boxing to a draw" or "giving the union a run around while purporting to be meeting with the union for the purpose of collective bargaining".
On the subjects listed in the complaint, it is patent that by the third negotiating session, the Union had brought out and repeated all its main arguments for those subjects. Throughout the sessions, Respondent stood fast on its position that it would never include those subjects into a collective bargaining agreement. Its position on this had hardened even at the outset of the negotiations when it maintained that it had customarily appended said subjects to the collective bargaining agreement such that they would not be subjected to the grievance arbitration provision of the collective bargaining agreement and further that those items were among those rights exclusively vested to it by Section 447.209, F.S. Respondent maintains that it released information to the public through its agent which was an exercise of its right of free speech pursuant to Section 447.501(3), Florida Statutes, and/or that it was its legal duty imposed on it by Chapter 119, Florida Statutes.
The Respondent apparently overlooked the fact that the employee organization (the Charging Party here) is certified to be the exclusive bargaining agent for purposes of bargaining. This means of course, that as agent for unit employees, it is charged with the responsibility of negotiating with the public employer in an attempt to reach agreement on all matters affecting wages, hours and other terms and conditions of employment. This also means that Respondent is obliged to do more than merely listen to the various proposals advanced without any attempt or effort to reach an agreement on basic terms which are customarily included within collective bargaining agreements.
As previously stated, the Act does not require concessions by either side during bargaining nor the surrender of convictions of alterations of philosophies, provided such convictions or philosophies are not made operative in such manner as to foreclose bona fide consideration of bargainable issues. Duro Fittings Company, 121 N.L.R.B. 377, 383.
Throughout these sessions, DTU was repeatedly rebuffed on minor problems such as establishing an agenda and obtaining agreement for future negotiating sessions. Respondent maintained its stand on all the items alleged by it as "nonnegotiable" which left the Union in a situation wherein, in order to make any movement, it was forced to submit counters to its own proposals without any movement on management's part. The failure on management's part to submit any counter proposals on those items lends support for an inference that they were not bargaining in good faith. Further support for this inference lies in the fact that Respondent publicly denounced the DTU's chief negotiator as a hired gun and as a person who wanted to pick the pocket of the taxpayers and by publicly releasing to the press items which the employees' exclusive bargaining
representative had been repeatedly pressing for at the negotiating table. I recognize it is not usually the obligation of the employer to make suggestions when it takes a position and maintains it in good faith, and that refusal by an employer to aid a Union by acceding is not sufficient, standing alone, to permit an imputation of an intent to frustrate final agreement. This is true only if the refusal is supported by reasons of substance which are advanced in good faith and to further legitimate business interests, while indicating that it still maintained an open mind on the issue. Hence, where the Union had displayed a disposition to be flexible and make concessions on the deadlock issues and Respondent itself indicated publicly to the unit employees that it had in mind a possible raise for them, it was incumbent upon Respondent, as evidence of its good faith, to broach the alternatives formally to the Union immediately after, if not before, said information was released to the press, especially when the Union questioned its stand, if it was at all sincere in its desire to resolve those issues in an effort to reach a final agreement. Also the thrust of the article released to the press which in essence indicated that the Union had lost a 6.25 percent raise because their Union forced negotiators to an impasse, while failing to advise the Union even after the details of such had been released to the press, strongly indicated that the Respondent was treating the Union, not as a certified bargaining agent of the workers, but as an interloper seeking to gain some advantage for itself, in any dealing between Respondent and its employees. This attitude ignored the fact that Respondent was in fact and in law dealing with the employees themselves, when it talked to the Union as their bargaining agent. This is strong indication of bad faith bargaining, for in effect Respondent was announcing to the employees, during and after bargaining, that while it would give them benefits as workers it would not consider a grant of certain benefits, because they were asking for them through their bargaining agent. See for example Kayser-Roth Hosiery Company, 176
N.L.R.B. 999, 1000, 1001. Considering the totality of its conduct vis-a-vis the employees and their chosen agent before, during and after the negotiations, I am constrained to conclude that Respondent's standing attitude of hostility toward the Union, including its blunt threats against the bargaining team's members, pervaded and controlled its attitude in bargaining and its adamant opposition to those subjects was the primary cause of the impasse reached. In this respect, Respondent failed to meet its obligation to bargain in good faith with the Union in violation of 447.501(1)(a) and (c) of the Act.
Additional indicia of Respondent's bad faith bargaining appears in its dealing with the press when it released the fact that the union had been instrumental in losing a 6.25 percent raise because it (the Union) forced negotiations to an impasse while knowing that it had never offered such to the Union and when requested for such proposals, it initially denied that it existed and after repeated requests only grudgingly released such. The same is true with respect to the failure to submit to the DTU's negotiating team a list of items which Respondent labeled "nonnegotiable" by its taking the position initially that no such list existed and after repeated requests to find out if such a list existed, the Respondent belatedly released such to the DTU's team. The Respondent's contention that its purpose in issuing the letter to the press was not to make a proposal but to (a) avert a strike and (b) to allow the Union a face saving means of returning to the bargaining table is unpersuasive and is regarded by the undersigned as incredible in view of the entire course of conduct by the Respondent's team throughout the negotiating process. This was further clear indication of surface" or "sham" bargaining in bad faith in violation of the Act. 2/
The evidence indicates that on at least two occasions after the information had been released to the public, Respondent refused to grant those
releases to the DTU's team at the negotiating table. I find that such conduct on the part of the Respondent is coercive in nature because, when stated in the terms released to the press without explanation, they tended to demonstrate to employees the futility of further negotiations on salaries, as well as an adamant and apparent unreasoning attitude on it, which is some evidence of bad faith bargaining. I find that Respondent thereby violated Chapter 447.501(1)(a) and (c) of the Act.
Additional indicia of Respondent's bad faith bargaining is found in the fact that it refused to reduce and include in written form in its collective bargaining agreement, those items to which it reached agreement on. By engaging in such conduct, I find that the Respondent thereby engaged in unfair labor practices within the meaning of Section 447.501(1)(a) and (c) of the Act.
Additional indicia of Respondent's bad faith bargaining lie in its insistence on agreeing to schedule sessions on a daily basis and by its refusal to discuss items which, although not on the agenda, were related and the only reason Respondent advanced for not discussing such items was based on that fact. At one session, when DTU attempted to discuss a non-agenda subject, management suggested that the session be adjourned for one hour and reconvene so that the additional non-agenda items could be placed on the agenda and discussed.
In each case in which the Respondent is charged with having failed to satisfy its duty to bargain in good faith, the entire course of conduct at the bargaining table has to be judged and considered by the totality of the circumstances. The term good faith has been held to mean that parties must approach the bargaining table with an open mind and with the intent to reach agreement. See for example N.L.R.B. v. Herman Sausage Company, 275 F.2d 229 (CA5, 1960); N.L.R.B. v. Reed and Prince Manufacturing Company, 205 F.2d 131 (CAl, 1953). Turning to the outset of the negotiation process in this case, prior to the first session, Bates testified without contradiction that superintendent Sang publicly attacked him as Charging Party's national representative as a "hired gun" and a person who was seeking to "pick the pockets of the taxpayers". Concerning his memo of April 19, Kennedy testified that "this document reads like history written in the spring as to what occurred not". See General Counsel's Exhibit #7 received into evidence. As that exhibit reflects, Respondent seemed calculated and more concerned with establishing rules and creating other subterfuges by which it could refuse to bargain than it was with performing its obligation to bargain in good faith. For example, evidence reveals that bargaining did not commence until approximately five weeks after the DTU's initial request. The first session centered around clearing up a ground rules proposal which as the evidence reveals, were the previous years ground rules. It took more than two negotiating sessions to finalize ground rules. This pattern continued throughout the negotiating process and clearly evinces Respondent's strategy of putting form over substance.
Management does not deny and in fact admits that it termed various subjects "nonnegotiable". However it urges that it would include such subjects as appendages to the collective bargaining agreement. By so doing, the enforceability of such appendages would indeed be questionable. Furthermore, Section 447.001, F.S., requires the parties to negotiate a grievance procedure which shall be final and binding on the parties. By appending traditional subjects of collective bargaining such as discipline and discharge to the collective bargaining agreement, the employer would obviate its obligation to submit any disciplinary action to the grievance machinery and the collective bargaining agreement and would make a nullity of the proviso to Section 447.209,
F.S. Also, Section 447.309(5), F.S., provides in pertinent part that "any
collective bargaining agreement ... shall contain all of the terms and conditions of employment of the employees in the bargaining unit The evidence clearly shows in this regard that Respondent, after having agreed on certain proposals, refused to put them in the collective bargaining agreement thereby obviating any obligation to grieve them by the grievance machinery.
Without going through each of the subjects listed in the complaint, some discussion on some of the items is worthy of mention in this decision. The Respondent termed discipline and discharge, seniority, transfer, summer school assignment, student discipline and disruptive student policy nonnegotiable subjects. However it agreed to append such subjects to the collective bargaining agreement. It is ludicrous to even suggest that discipline, discharge, seniority and transfer are not matters which affect an employee's employment relationship. As the evidence indicates, Respondent has a rule which states that violations of its policies subject a teacher to disciplinary action including discharge. Thus, for example, if a teacher fails to discipline a student who is disruptive in a manner which, according to Respondent, violates its policy, said teacher is subject to disciplinary action which often may lead to discharge. Another subject, seniority, has been held by numerous jurisdictions to be a mandatory subject of bargaining in that it, among other things such as merit, determines which teachers are eligible for promotion to various positions which become vacant during the school term. This necessarily affect a teacher's employment conditions and is therefore a term and condition of employment within the meaning of Section 447.309, F.S. Additionally, numerous jurisdictions have held that the impact of a managerial decision on terms and conditions of employment is a mandatorily negotiable subject. See for example, West Irondequoit Teachers Association v. Helsby, 315 N.E. 2d 775(Ct of App., 1974). Based on the foregoing, and by offering only the prior contract language as its counter proposals on the vast majority of issues, by refusing to tie logically related issues together in negotiations, by unreasonably delaying discussion on money issues, by attempting to denigrate the DTU's representative in the press and by attempting to deal directly with the employees and thereby bypassing the employees designated exclusive bargaining representative, and by unreasonably delaying discussion on money issues, Respondent effectively refused to bargain throughout the entire course of negotiations.
Based on the above conduct and in light of Respondent's continual insistence on appending agreed upon proposals to the collective bargaining agreement and thereby avoiding the enforceability thereof by arbitration, Respondent thereby violated Section 447.501(1)(a) and (c), F.S.
CONCLUSIONS OF LAW
The parties were duly noticed pursuant to the notice provisions of Chapter 447, F.S.
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.
The Charging Party is now, and has been at all times herein, an employee organization within the meaning of Section 447.203(10), of the Act.
The Charging Party is now, and has been at all times material herein, the certified representative for the purposes of collective bargaining for all employees employed by the Duval County School Board in the above described unit.
Commencing on or about May 13, and continuing throughout the subsequent course of bargaining, Respondent refused and continues to bargain collectively in good faith with the Charging Party in respect to rates of pay, wages, hours of employment and other terms and conditions of employment as the exclusive bargaining representative of all employees in the unit described above by engaging in a course of conduct of surface bargaining as set forth specifically above in detail all in violation of Sections 447.501(1)(a) and (c) of the Act.
Having found that the Respondent has refused to bargain collectively in good faith with the Union as found above, I shall therefore recommend that it take the following action, which is necessary to effectuate the policies of the Act:
Upon request, bargain collectively in good faith with the above-named union as the exclusive bargaining representative of all employees in the appropriate unit described above and, if an understanding is reached, embody such understanding in a signed agreement and recognize and deal with said union as such exclusive bargaining agent.
DONE and ENTERED this 22nd day of November, 1976, in Tallahassee, Florida.
JAMES E. BRADWELL
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
ENDNOTES
1/ Unless otherwise noted, all dates are in 1976.
2/ In reaching the above conclusions, I have carefully studied other citations of authority by Respondent and its arguments based thereon, and find such authorities either inapposite on the facts or not inconsistent with the law and the legal conclusions I have reached.
COPIES FURNISHED:
William H. Maness, Esquire 603 Florida Theater Building Jacksonville, Florida 32202
Spiro T. Kypreos, Esquire Assistant City Counsel 1300 City Hall
Jacksonville, Florida 32202
Richard T. Donelan, Jr., Esquire and
Tom W. Brooks, Esquire Staff Attorneys
Florida Public Employees Relations Commission
2003 Apalachee Parkway, Suite 300
Tallahassee, Florida 32301
=================================================================
AMENDED AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
PUBLIC EMPLOYEES RELATIONS COMMISSION
DUVAL TEACHERS UNITED, FEA-AFT, AFL-CIO,
Charging Party,
vs. CASE NO. 8H-CA-764-3134
DOAH CASE NO. 76-1477
DUVAL COUNTY SCHOOL BOARD,
Respondent.
/
AMENDED ORDER
William H. Maness, Jacksonville, attorney for charging party.
Frederick Simpson and Spiro T. Kypreos, Jacksonville, attorneys for respondent.
Richard T. Donelan, Jr. and Thomas W. Brooks, Tallahassee, attorneys for General Counsel, Public Employees Relations Commission.
Pursuant to Section 447.503(5), Florida Statutes (1975),the order issued on April 19, 1975, in this case is amended to read as follows.
On August 25, 1976, the Acting General Counsel of the Public Employees Relations Commission issued a complaint in the above-styled case against the DUVAL COUNTY SCHOOL BOARD, Respondent herein. The complaint was based on charges filed by the DUVAL TEACHERS UNITED, FEA-AFT, AFL-CIO, Charging Party herein, 1/ and copies of the charges and complaint were duly served on the Respondent and Charging Party. 2/ The complaint alleged that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 447.501(1)(a) and (c) of Chapter 447, Part II, Florida Statutes (1975), hereinafter the Act.
More specifically, the complaint alleged that Respondent refused and continues to refuse to bargain collectively in good faith with the Charging Party and, rather, has engaged in a course of conduct of surface bargaining.
The surface bargaining allegation charges that Respondent: (1) persisted in a fixed and unalterable position that certain mandatory subjects of bargaining were not negotiable and Respondent, therefore, refused to bargain on these issues; (2) released to the press a salary proposal which had never been submitted to the Charging Party during bargaining sessions; and (3) stated that teachers had lost a 6.25 percent raise because their union (the Charging Party) forced negotiations to an impasse. The complaint concludes that the foregoing conduct constituted an interference with, restraint, and coercion of employees in the exercise of rights guaranteed to them in Section 447.301(1) and (2) of the Act, thereby violating Section 447.501(1)(a) of the Act. Furthermore, the complaint alleges that Respondent's conduct constituted a refusal to bargain collectively in violation of Section 447.501(1)(c) of the Act.
The case was tried on October 6 and 7, 1976, 3/ and the Hearing Officer's Report and Recommended Order was issued on November 22, 1976. Thereafter, Respondent filed exceptions to the Hearing Officer's Recommended Order.
Respondent and the General Counsel both filed briefs to the Commission, and both were afforded the opportunity to present oral argument at the proceeding before the Commission. 4/
The Commission has considered the record and the Hearing Officer's Report and affirms the Hearing Officer's findings of fact, except as modified herein.
The complaint alleges, and Respondent admits, that (1) the charge was filed on July 29, 1976, and served on Respondent on or about July 27, 1976; (2) Respondent is a public employer within the meaning of Section 447.203(2), Florida Statutes; (3) Respondent has its principal place of business in Jacksonville, Duval County, Florida, where it operates a public school system;
(4) Respondent is created directly by the Florida Constitution and is administered by individuals who are responsible to public officials and/or the general electorate; (5) the Charging Party is an employee organization within the meaning of Section 447.203(10), Florida Statutes, and is now and has been at all times material herein, the certified representative for the purposes of collective bargaining for all employees of the Duval County School Board in the following unit:
INCLUDED: Classroom teachers: nursery, kinder- garden, elementary (primary 1-3), elementary (intermediate 4-6), elem- entary (1-6), junior high (7-9), senior high (10-12), driver education,
exceptional (special education), remedial, resource (art, music, etc.), vocational- home economics, vocational distributive, vocational agriculture, vocational trade and industrial, vocational technical, office education, industrial arts, man- power and diversified (DCT), guidance counselors, occupational specialists, media specialists, specialists-other instructional, TV instructor, other instructional (except administrative assistants).
EXCLUDED: Associate superintendents general directors, directors, supervisors,
coordinators, specialists, community school "coordinators," principals
and assistant principals, and adminis- trative assistants.
Furthermore, Respondent admitted that the parties had entered into a collective bargaining agreement effective July 1, 1975, and expiring June 30, 1976 and that the parties began to negotiate on or about April 22, 1976, and met for the purpose of negotiating on or about the following dates: May 13, 14, 19; June 8, 14, 15, 16, 17, 18, 19; July 9; August 9, 10.
On the basis of the foregoing findings of fact, the commission finds that the policies of the Act will be effectuated by asserting jurisdiction herein.
The record reflects that on March 16, 1976, the parties agreed to meet on April 22, 1976, to begin collective bargaining for a successor agreement. The session commenced with the introduction of the bargaining team members and an introductory statement by Robert B. Bates, chief negotiator for the Charging Party. In his introductory statement, Bates alluded to a statement made a few days prior by Superintendent Herb A. Sang publicly attacking Bates as an "outside agitator and hired gun" and accusing the DUVAL TEACHERS UNITED (hereinafter DTU) of "coming to the table to pick the pockets of the taxpayers". Bates advised those present that both sides should refrain from making such attacks in the future because mutual trust was essential to the negotiation process. Negotiations then commenced with a discussion of ground rules.
The first ground rule proposed was that each negotiating session should be determined at the preceding session for a mutually agreeable date, time and place. Bates expressed reservations about daily scheduling because of another commitment to negotiate an agreement in St. Louis, Missouri, but finally agreed with the scheduling rule as proposed. Bates informed Respondent that he was planning a vacation for sometime in July. Respondent's representatives voiced no objections and indicated the expectation that hopefully an agreement would be reached prior to June 30. The parties agreed to meet on April 28, 29 and 30 to clarify ground rules and, according to DTU, to begin negotiating on DTU's proposals.
As agreed, the parties met on April 28 and finalized the language of the ground rules after three hours of discussion. The established ground rules were the same as those used the previous year. Approximately 80 percent of the DTU proposals had been submitted on April 28. However, Respondent's chief negotiator, Andrew J. Knight, informed DTU that no bargaining on submitted proposals would occur until May 10 because the ground rules stated that the parties' final proposals were to be submitted by May 10 and all of the union's proposals had not been submitted. When Respondent refused to commence bargaining on the proposals, the DTU team left the meeting with Bates advising Respondent's team that DTU would resume negotiations when management submitted its proposals.
DTU submitted its remaining proposals on May 10, 1976,
and Respondent submitted five proposals to DTU on May 11. The parties met again on May 12, and the Respondent announced at that time that the five proposals constituted its entire response to DTU's package. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by Respondent, and they placed proposals on the agenda (including Discipline and Discharge, Tenure, Personnel Files, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer) to be discussed the following day.
On May 13, DTU attempted to negotiate concerning Discipline and Discharge, Personal Rights, Academic Freedom, and Transfer, only to be informed by Knight that these subjects were "inherent management rights" and, therefore, nonnegotiable. Respondent's counterproposals on the other agenda items tracked the language of the previous year's contract. Bates tried to schedule future sessions, but Knight rejected such scheduling on the basis of the language of ground rule 1 (i.e., that scheduling would be meeting-to-meeting). Bates further attempted to secure a commitment that Respondent would meet on Saturday, May 15. Bates had a plane ticket for Friday, May 14 that he was willing to cancel in order to negotiate on Saturday. Knight responded that it would "probably be okay" but refused to make a firm commitment on the basis that the ground rules precluded such a commitment a day in advance. At the May 13 meeting Bates attempted to place items the Respondent had declared nonnegotiable back on the agenda. Knight refused to put those items on the agenda, insisting that the agenda had to be "mutually agreed to". The parties agreed to meet on May 14.
During the May 14 session Bates again attempted to discuss the DTU proposals that he wanted on the agenda. Knight's position was unchanged; the DTU items were not on the agenda and could not be negotiated. Near the close of the meeting, Respondent declined to meet on Saturday, May 15. It was then too late for Bates to depart on his scheduled flight.
The next session, was held on May 19. At that meeting Bates insisted that the ground rules did not provide for a mutually-agreed-to" agenda and demanded that the alleged "nonnegotiable" items be placed on the agenda. Since those items did not appear on the agenda prepared by Respondent for the 19th, Respondent refused to negotiate them. Knight informed DTU that Respondent's counterproposals would be given on each issue as it was discussed according to a "mutually-agreed-to agenda". The DTU team left the meeting with Bates replying that DTU would return when management's counterproposal package was received.
On May 28, Knight and James W. Geiger, then President of DTU, had a phone conversation in which the parties agreed to resume bargaining on June 3. Geiger questioned whether Knight and the remainder of Respondent's team were serious about bargaining and Knight replied affirmatively. The parties met on June 3 at 5:00 p.m. at which time Respondent presented the expired contract as its counterproposal package. (No other counterproposals were given on any item in the union package) Bates again attempted to negotiate the alleged nonnegotiable items, without success. Knight replied that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been made pursuant to the ground rules and no "mutually-agreed-to" agenda had been established. Knight advised however, that the Board's team was willing to sit with the DTU's team, but would not bargain. The parties eventually agreed to meet on June 8.
On June 8, Bates advised the Board's team that DTU was unavailable for negotiations from June 19 to June 22 because of schedule conflicts but that DTU was available for the five days preceding June 19. No agreement was reached on June 8 except an agreement to meet on June 14. Geiger asked Respondent's team whether it intended to preclude bargaining concerning the calendar by its adoption of the 1976-77 school year calendar which had been put into effect.
The Board's response was that the calendar could be modified at the bargaining table with respect to any dates that affected students.
Thereafter the parties met daily from June 14 - 19. During this period, one agreement was reached on June 16, when a "salesman" article was initialed pursuant to the ground rules. Respondent maintained its prior stance on issues of Summer School Assignment, Student Discipline, and a Fair Treatment Clause stating either that the subject items were "inherent management rights" or that they were matters which were nonnegotiable in that they "infringed student rights" In response to DTU's attempt to produce dialogue on a DTU proposal on Fair Treatment, Respondent commented that the union only represented incompetent teachers, and that competent teachers had no problems concerning the meaning of "fair and equitable". Further, Knight said that if the union was in charge of Student Discipline, "the firing squad would come into existence" and that he would "take it all the way to the Supreme Court before this would ever go into a collective bargaining agreement". Other items such as Disruptive Student Policy, School Nurse, and Evaluations were labeled nonnegotiable by Respondent. During the June 18 session, Respondent's team advised DTU's team that any agreement reached through negotiations after the expiration of the current agreement would not be retroactive and that if DTU did not meet on Saturday, June 19, the Board "just might have to file an unfair labor practice charge".
Bates accordingly cancelled his conflicting meeting and the parties met again on June 19.
The entire discussion on June 19 centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put those policies into the contract. Near the end of the June 19 meeting, Respondent's team indicated that they desired to meet on Sunday, June 20, which was Father's Day. Bates declined, citing his previous commitment in Tampa about which Respondent had been informed. The Board's team insisted that a meeting take place on the 20th or 21st, notwithstanding previous DTU commitments, but DTU refused. Bates informed Respondent that DTU could meet Wednesday, June 23, and inquired whether Respondent would be available. Knight responded that Respondent's team would be available. The DTU team, believing that a meeting was scheduled for Wednesday, June 23, arrived for the session at 9:00 a.m. Respondent's team did not appear.
In a phone conversation between Geiger and Knight, the next meeting was scheduled for June 24. Geiger testified he advised Knight that DTU's team wanted to commence serious bargaining at the next session and he had been assured by Knight that serious negotiations would occur. However, Geiger received a memo from Knight relating his version of the phone conversation which in essence stated that the June 24 meeting was for the sole purpose of setting a date, time and agenda, pursuant to the ground rules.
Knight, in accordance with his memo, refused to bargain at the June 24 session insisting that to do so would violate the ground rules since no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour and officially, reconvened after agreement pursuant to the ground rules. Geiger commented that such a move was "silly" and that he thought Respondent was "playing games".
The next session took place on June 25 and centered almost exclusively around a budget presentation by a school board member, Mr. Clemmons.
Respondent had submitted its first counterproposal on salary on June 3.
That proposal was identical to the then existing current salary schedule. During his testimony, Kennedy (Knight's successor as chief negotiator for Respondent) admitted that the proposal was not submitted in earnest.
Respondent's second salary proposal was submitted on July 1. It was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday (June 26) and that they had expected it to be offered at a session before July
1. At the July 1 meeting Respondent requested the assistance of a mediator.
On July 2, DTU requested information from Respondent regarding the employee benefits article DTU submitted. Knight stated that "no cost estimates had been prepared and that DTU could work out the costs as easily as the Board could".
Knight advised that Respondent did not think DTU seriously thought the School Board could afford DTU's proposals. Therefore, no estimates were prepared.
Estimates however, were provided at the next meeting, which estimates according to Geiger, were prepared by a Mr. Simmons, of the Board's team. In submitting them, he advised that they were not detailed estimates. The issue of a Sick Leave Bank was also discussed at the July 2 meeting. The Board team apparently had no objection in principle to the formation of a bank, but expressed its opinion that it was illegal. When advised that such a bank existed in Dade County, Knight testified that he still questioned its legality since Kennedy had made inquiries to the Dade County School Board and was told that it was not expressly sanctioned by any statute, rule or regulation. Regarding the appointment of a mediator, DTU expressed that although it felt appointment at that time was premature, it had no objection based on Respondent's promise to really "get down to meaningful bargaining". Geiger conversed with Bates about DTU's availability during the following week. The parties agreed that their teams would beat the bargaining table. DTU's team thereupon cancelled its vacation plans and was prepared to negotiate the next week.
Geiger testified that negotiations were carried on during the week of July
- 9 and that it was "a fruitless exercise in futility". Geiger also testified, without contradiction, that Superintendent Sang had released to the press, a copy of what he termed to be "nonnegotiable issues." On July 8, when the DTU's team asked Respondent's team for such a list, they were advised that no such list existed. However, after pressing for approximately three to four hours, Mr. Knight produced a list which coincided with the list that had been distributed to the press, and the list contained items which Respondent indicated it would refuse to bargain over. On July 9, after the DTU's team was unable to obtain counterproposals from Respondent, DTU declared impasse.
No bargaining took place between the period July 9 through August 2.
Bargaining resumed on August 3, at which time DTU demanded that Respondent place on the table a salary schedule which had been released to the press by Respondent on July 22. Respondent refused. The demand was renewed at bargaining sessions on August 4 and 5. The salary schedule was finally submitted by Respondent on August 10. This schedule was unilaterally adopted by Respondent September 13.
During the August 10 session, Dates questioned as to whether Kennedy and the remainder of the Respondent's team had the authority to negotiate issues identified as "nonnegotiable" by Respondent. Kennedy replied that he had no authority to negotiate those issues and stated that while there was some overlap between management rights and working conditions, he refused to negotiate the "overlap" areas.
On August 16, DTU requested that the Commission petition the circuit court for injunctive relief in this case pursuant to Section 447.503(3)(b) of the Act.
A special master hearing was held on August 20. (The Special Master's report was received by the parties on September 1.)
On August 21, following breakdown of negotiations, Judge John McNatt of the Circuit Court in Duval County issued an injunction against Repondent for engaging in bad faith bargaining. Negotiations resumed on August 21 pursuant to Judge McNatt's Order.
At the August 21 meeting, the parties appeared to reach agreement on the language for a Discipline and Discharge article. However, after agreeing, Respondent indicated it would not include such language in the collective bargaining agreement, but rather would "append it to the contract". If the Discipline and Discharge provision, or any other provision, was appended to the agreement and not made an intergral part of it, problems arising under that language would not be subject to the grievance procedure provided for in the contract. Respondent then attempted to induce DTU's assent to this appendage by producing a Transfer counterproposal for inclusion in the contract, if DTU would capitulate on the Discipline and Discharge provision. This was the first time that a Transfer counterproposal had been introduced since negotiations began in April. In fact, Respondent had previously refused to discuss Transfer as an "inherent management right". DTU immediately rejected the package offer as unacceptable.
On August 27, the parties returned to Circuit Court to report on the progress of negotiations. At that time, DTU language on two issues, Grade Reporting and Court or Jury Duty.
No further negotiations were held after September 9. On that date, a final package offer was made to DTU which was essentially the same package offer of August 21, with two exceptions: (1) inclusion of the Transfer/Discipline and Discharge proposal, and (2) a retroactive effective date of July 1. At the same time this package was offered on September 9, Respondent was rejecting the Special Master's report in toto.
Respondent is charged with a violation of Section 447.501(1)(a) and (c) of the Act, which latter provision prohibits public employers or their representatives from failing to bargain collectively in good faith. In determining the presence or absence of good faith bargaining, the Respondent's total conduct during the course of negotiations must be viewed in light of all of the circumstances in the particular case. Escambia Education Association and School Board of Escambia County, Case No. 8H-CA-754-1110 et al., PERC Order No. 76U-971 (May 13, 1976). In the present case a refusal or failure to bargain in good faith has been amply demonstrated.
The concept of good faith bargaining was dealt with by the United States Fifth Circuit Court of Appeals in NLRB v. Herman Sausage Co., 275 F.2d 229 (5th Cir., 1960). 5/
The Court stated:
The obligation of the employer to bargain in good faith does not require the yielding of positions fairly maintained. It does not permit the [National Labor Relations] Board, under the guise of finding of bad faith, to require the employer to contract in a way the Board might deem proper. Nor may the Board
". . . directly or indirectly compel con- cessions or otherwise sit in judgment upon
the substantive terms of collective bargaining agreements . . .," for the Act does not "regulate the substantive terms governing wages, hours and working conditions which are incorporated in an agreement." NLRB v.
American National Ins. Co., 1952, 343 U.S. 395, 402, 404, 72 S.Ct. 824, 829, 96 L.Ed.
1027, 1036, 1937, affirming American National
Ins. Co. v. NLRB, 5 Cir., 1951, 187 F.2d 307.
On the other hand while the employer is assured these valuable rights, he may not use them as a cloak. In approaching it from this vantage, one must recognize as well that bad faith is prohibited though done with sophistication and finesse.
Consequently, to sit at a bargaining table, or to sit almost forever, or to make con- cessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence, we have said in more colorful language it takes more than mere "surface bargaining," or "shadow boxing to a draw," or "giving the Union a runaround while purporting to be meeting with the Union for purpose (sic) of collective bargaining." (Footnotes omitted).
Id. at 232. See also, Section 447.203(14) of the Act.
Negotiations concerning the employees in this case took place over a five- month period. What is at issue is Respondent's intent during these sessions; did Respondent approach the bargaining table with an open mind and a sincere intent to reach agreement? If this requisite intent is found to be lacking, Respondent's actions during negotiations amount to simple posturing or surface bargaining and make DTU's good faith attempts to negotiate futile.
In Respondent's Answer and Affirmative Defenses, it alleges that there is no duty imposed by the Act on a public employer to bargain over certain issues contained in the charge. Citing Section 447.209 of the Act, Respondent contends that it has unbridled and unilateral discretion over certain subjects.
Section 447.209, Florida Statutes states:
Public employer's rights -- It is the right of the public employer to determine unilaterally the purpose of each of its constituent agencies, set standards of ser- vices to be offered to the public, and ex- ercise control and discretion over its organization and operations. It is also the right of the public employer to direct its employees, take disciplinary action for
proper cause, and relieve its employees from duty because of lack of work or for other
legitimate reasons, however, the exercise of such rights shall not preclude employees
or their representatives from raising griev- ances, should decisions on the above matters have the practical consequence of violating the terms and conditions of any collective bargaining agreement in force or any civil or career service regulation.
Respondent further cites Article IX, Section 4(b) of the Constitution of the State of Florida in support of its theory of "inherent managerial rights".
Article IX, Section 4(b) of the Constitution provides:
The school board shall operate, control and supervise all free public schools within the school district and determine the rate of school district taxes within the limits prescribed herein. . .
It should be noted, however, that Article IX, Section 4(b) of the Constitution, and Section 447.209 of the Act, do not stand alone. Equal consideration must be given to Article I, Section 6 of the State Constitution, by which public employees are given the right to collective bargaining, and to Section 447.309(1) of the Act, which implements and broadly defines the parameters of that collective bargaining right.
Section 447.309(1) of the Act, states in pertinent part:
After an employee organization has been certified pursuant to the provisions of this part, the bargaining agent for the organization and the chief executive officer of the . . . public employer shall bargain collectively in the determination of the wages, ours, and terms and conditions of employment of
the public employees within the bargaining unit. The chief executive officer or his representative and the bargaining agent or its representative, shall meet at reasonable times and bargain in good faith. . . .
(Emphasis added).
The scope of bargaining defined by the phrase "terms and conditions of employment" is statutorily broad. The scope of the public employer's rights, as defined by Section 447. 209 of the Act, is also statutorily broad. It therefore cannot be categorically stated that the employer's right to "exercise control and discretion over its organization and operations", or its right to "direct its employees" will not at some point conflict with the employer's duty to collectively bargain over "terms and conditions of employment".
Conceptually, the scope of bargaining can be viewed as an continuum. The management rights of a public employer, pursuant to Section 447.209 of the Act, are at one pole; the bargaining rights of the employees, pursuant to Section 447.309(1) of the Act, are at the other. Each proposed provision for the
collective agreement somewhere along that continuum. At some point in the negotiating process it will be determined that the employer has an absolute obligation to negotiate regarding certain proposals. By the same standard, at some point in the negotiating process it will be determined that the employer's discretion in respect of certain proposals is beyond question. However, these determinations cannot be made at the threshold of bargaining by the mere categorization of certain "subjects" as "nonnegotiable", without further exploration into the impact and exact language of prospective proposals.
In the case sub judice, many of the provisions Respondent refused to negotiate should have been explored and discussed. Indeed, Respondent's chief negotiator admitted that while there was some overlap between management rights and working conditions, Respondent adamantly refused to negotiate those areas.
Whether a specific proposal falls within the mandatory or permissive category of bargaining will not be resolved in this order as that question is not before the Commission. The case before the Commission involves a more fundamental issue. In an effort to determine whether a provision is negotiable of right or rather a managerial prerogative, an employer must negotiate the areas of overlap. This is the essence of good faith bargaining. Respondent failed to determine where on the continuum of negotiability DTU's proposals lie. This threshold refusal to discuss these items with an open mind is the focal point of the instant action. By approaching the bargaining table with a fixed and preconceived determination as to which issues it would discuss and which it would not, Respondent violated Section 447.501(1)(a) and (c) of the Act.
For example, on May 13, DTU presented a bargaining proposal concerning Discipline and Discharge, which provided in pertinent part:
no employee shall be reduced in rank or compensation, deprived of any pro- fessional advantage, reprimanded, disciplined, discharged, terminated, or otherwise separated, except for just and sufficient cause . . . .
The proposal DTU sought to include in the collective bargaining agreement did not per se usurp any managerial right. In essence, the provision amounts to a restatement of the provision so heavily relied upon by Respondent. Section
447.209 Florida Statutes, states that it is the right of a public employer to "take disciplinary action for proper cause". It is beyond discussion that the discipline or discharge of an employee is a fundamental condition of employment. On its face, the language of DTU's proposal simply injures that management's right to discipline or discharge will not be exercised arbitrarily.
Had the Charging Party sought to severely restrict Respondent's power to discipline, or even divest it of this power, such a provision would indeed be treading on managerial prerogatives. However, such was not the case.
The Discipline and Discharge provision presented in negotiations by DTU should have been discussed. It was clearly a proper item for discussion as were other proposals Respondent persistently refused to negotiate.
As noted above, when determining whether a duty to bargain exists, the specific proposal submitted by an employee organization must be assessed vis-a- vis the rights of the public employer under Section 447.209 of the Act. It is clear that Respondent has a valid concern that it be able to maintain order in
its schools and be able to relieve disobedient or incompetent teachers. However, the impact of a decision falls within "conditions of employment".
Respondent contends that it not only had no duty to bargain over these provisions, but that to do so would have been per se unlawful. Specifically, Respondent cites Article IX, Section 4(b) of the Florida Constitution as implemented by Chapter 230, Florida Statutes, to support the proposition that it was legally precluded from bargaining in good faith with DTU. 6/ Moreover, Chapter 22197, Acts of 1941 as amended by Chapter 70-671 and Chapter 72-576 Laws of Florida, commonly known as the Duval County Teachers Tenure Act, is raised as a defense to negotiations.
As the right of public employees to collectively bargain is itself based on the Florida Constitution, Respondent's reference to Article IX, Section 74(b) does not bring into play any superior right or duty. The Legislature in enacting Chapter 447, Florida Statutes, knew of the existence of the above-cited constitutional provision and Chapter 230, Florida Statutes. Section 447.203(2) of the Act was specifically amended in 1976 to acknowledge the status of school boards as public employers under the Act. Chapter 76-269, Laws of Florida. No special treatment concerning the duty to bargain in good faith was deemed necessary by the Legislature for school boards.
The Duval County Teacher Tenure Act does explicitly set out the parameters of "just cause" for discipline or discharge. The Tenure Act is a special law last enacted in 1972. In City of St. Petersburg v. Siebold, 48 So.2d 291 (1950), the Supreme Court set forth the applicable rules of statutory construction. The Court stated,
A general act may operate to repeal repugnant local or special laws, though containing no general re- pealing clause, where the Legislature intended to repeal all conflicting local or special laws, is made plain by the terms and purposes of the general act. . . One of the funda- mental rules of construction is that the legislative intent must be as- certained and effectuated.
Id. at 292, 293. The Legislature in enacting Chapter 447 intended to create a comprehensive piece of legislation that embodied the rights of public employees to collectively bargain. Therefore, the Duval County Teachers Tenure Act will not act as a bar to legitimate bargaining.
Moreover, Respondent could have negotiated over Discipline and Discharge and conceivably reached agreement on a provision similar to the terms of the Tenure Act. This is the substance of the give and take process of bargaining. However, Respondent refused to take the first step in this process. It had determined prior to the first negotiating session that no bargaining would occur on many items. . . key items for the employees represented by DTU.
Again, at some point on the continuum of discussion, the employer need not negotiate. An employer need never yield from a reasonable bargaining position if its position is based upon legitimate business interests, while still maintaining an open mind.
Respondent then contends in the alternative that it did bargain over these disputed items and agree on them, but wished to append them to the contract.
This contention flies squarely in the face of the statute. Section 447.309(5) of the Act states:
Any collective bargaining agreement shall contain all of the terms
and conditions of employment of the employees in the bargaining unit during such term except those terms and condi- tions provided for in applicable merit and civil service rules and regulations. (Emphasis added).
Respondent's insistence on appending items to the bargaining agreement thereby making them not subject to the grievance procedure, cannot be permitted in light of the express language of the Act. See also, Section 447.209 of the Act. By agreeing to certain items and subsequently refusing to integrate them into the contract, Respondent violated Section 447.501(1)(a) and (c) of the Act.
Other indicia of Respondent's failure to bargain in good faith include:
Respondent's generally hostile attitude toward DTU and particularly toward Mr. Bates, (2) Respondent's hypertechnical approach toward establishing agenda and meetings, and (3) Respondent's release to the media of information which DTU had repeatedly requested at the bargaining table.
Respondent's overall hostile attitude was displayed in several ways.
Before formal negotiations even began, Superintendent Sang publicly attacked DTU's chief negotiator as an "outside agitator and hired gun" and publicly accused DTU of "coming to the table to pick the pockets of the taxpayers". Once negotiations had begun, Respondent created several scheduling problems: (1) Respondent refused to meet on May 15 knowing Bates had missed his May 14 flight;
Respondent insisted on meeting on Father's Day (June 20), knowing of Bates' prior commitment in Tampa; (3) Respondent indicated the availability of its team to meet on June 23 and then did not appear on that date, and (4) Respondent insisted that DTU team members change their vacation plans after Bates made a special effort to secure Respondent's approval far in advance.*/8
Respondent's hostile attitude was also evidenced by its hypertechnical adherence to ground rules, specifically those relating to establishing agenda and meetings.
As previously stated, Respondent insisted on determining at the preceding session a mutually agreeable date, time and place for the next session. Once Bates reluctantly agreed, Respondent refused to negotiate unless this ground rule had been literally adhered to by the parties. Respondent also insisted it could not negotiate issues unless they had been placed on a "mutually-agreed-to" agenda. By requiring strict adherence to these procedural rules, Respondent wasted valuable time that could have been used to negotiate substantive issues. For example, on June 3 Knight informed DTU that the Board team was there only to transmit its package and not to bargain since no agreement had been made to meet on that date pursuant to the ground rules and no "mutually-agreed-to" agenda had been established. However, Knight advised DTU that the Board's team was willing to sit with DTU's team . . . toward what end it is not known.
At the June 24 meeting, Knight again refused to bargain because it would violate the ground rules since no agreement had been reached at the prior
meeting. After some discussion Knight then suggested that the meeting be adjourned for an hour and officially reconvened after agreement pursuant to the ground rules.
Ironically, although Respondent insisted on strict adherence to the scheduling/agenda ground rule, Respondent itself repeatedly violated a different ground rule -- that the parties' proposals would be submitted by May 10.
Respondent submitted no proposals until May 11, at which time Respondent submitted only five proposals. On May 12, Respondent informed DTU that these five proposals were its entire response to DTU's package. Not until June 3 did Respondent present its other proposals. The language of the proposals eventually submitted merely tracked the language of the agreements embodied in the expired contract.
As the Hearing Officer aptly concluded in his Recommended Order, "Respondent seemed calculated and more concerned with establishing rules and creating other subterfuges by which it could refuse to bargain than it was with performing its obligation to bargain in good faith". Bargaining did not commence for approximately five weeks after DTU's initial request. The entire first session was concerned with clearing up a ground rules proposal which constituted the previous year's ground rules. Even then, it took more than two sessions to finalize ground rules, which were the same as those utilized the previous year. As the Hearing Officer observed, this pattern "clearly evinces Respondent's strategy of putting form over substance:.
The record reflects that Respondent on more than one occasion released information to the media that had never been previously offered to DTU. On July 1, Respondent offered its second salary proposal which consisted of the existing salary schedule plus $100 across-the-board. Geiger testified that he had heard of this offer on the radio on June 26.
Then, on July 8, a list of "nonnegotiable" items prepared by Respondent was released to the press and a copy was shown to Bates by a media person that same afternoon. When DTU demanded a copy of the list from Knight on the 9th, Knight denied its existence. After DTU pressed Respondent for approximately 3 - 4 hours, Knight produced the list.
Finally, during the period July 9 - August 2, a period in which no bargaining took place, Respondent released to the press a salary schedule offering a 6.25 percent increase. On August 3, when bargaining resumed, DTU demanded that Respondent place the salary schedule on the table. Respondent refused. DTU renewed its demands on August 4 and 5 but was unsuccessful until August 10.
Respondent's repeated practice of releasing information to the media undermined the bargaining process by encouraging a lack of confidence on the part of the employees toward DTU. This undermining is particularly evident by Respondent's press release that the union had been instrumental in losing a 6.25 percent raise because the union forced negotiations to an impasse. At the time of this release, Respondent had never offered such a raise to the union and in fact, denied the existence of this salary proposal when the proposal was later requested by DTU. By releasing information to the public and refusing to give those releases to DTU, Respondent's conduct was coercive in nature because it tended to demonstrate to employees the futility of further negotiations on salaries. Such an unreasoning attitude is evidence of bad faith bargaining and violative of sections 501(1)(a) and (c) of the Act. Respondent's contention that its purpose in issuing the 6.25 percent raise information to the press was
not to make a proposal but to avert a strike and allow DTU a means of saving face is somewhat incredible when viewed with the entire course of conduct by Respondent throughout the negotiations.
On September 27, 1976, Respondent filed a Motion To Dismiss For Mootness. The Motion alleges that inasmuch as the unfair labor practice presently under consideration involves an allegation of a failure to bargain in good faith, it should be noted that impasse proceedings have been held in this matter pursuant to Section 447.403 of the Act. Therefore Respondent contends this action is moot.
An employer will not be permitted to engage in a course of conduct tantamount to a refusal to bargain and subsequently be allowed to "cleanse" its illegal activity through the statutory impasse procedures. Respondent's motion is denied.
The stated policy of Florida Statutes, Chapter 447, Part II (1974), is "to promote harmonious and cooperative relationships between government and its employees" by assuring "the orderly and uninterrupted operations and functions of government". Section 447.201, Florida Statutes (1974).
To effectuate this policy, Section 447.201(2) specifically requires public employers to negotiate with certified bargaining agents of public employees. To ensure "orderly and uninterrupted operations", the parties negotiating over a collective bargaining agreement must approach the bargaining table with a sincere effort to reach an agreement satisfactory to both parties. In examining the totality of Respondent's conduct in the instant case, the evidence demonstrates that Respondent did not make a sincere effort to reach a satisfactory agreement and, therefore, did not act in a manner consistent with the policy of the Act. By its conduct, Respondent clearly violated sections 501(1)(a) and (c) of the Act.
Due to the flagrant nature of Respondent's violation, and length of time during which the employees were deprived of an opportunity to reach agreement (over a year since the union's request to bargain on March 16, 1976), an extraordinary remedy is required. The Commission will therefore require the Respondent to bargain in good faith not only as to wages, hours, and terms and conditions of employment for the future, but also to bargain in good faith with respect to the monetary benefits sought by the employee representative for the employees since March 16, 1976. In bargaining over such monetary benefits, the parties should give due consideration to the report of the special master issued on August 31, 1976, pursuant to Section 447.403 of the Act.
Pursuant to Section 447.503(4)(a), Florida Statutes (1974), Respondent, DUVAL COUNTY SCHOOL BOARD, is ordered to:
Cease and desist from:
Refusing to bargain collectively in good faith with the afore-named certified exclusive collective bargaining representative of the employees in the appropriate unit described herein.
Interfering with, restraining, or coercing its employees in any like or related manner in the exercise of the rights guaranteed them under the Act.
Take such affirmative action as is deemed necessary to effectuate the purposes of the Act:
Respondent shall, upon request, meet with representatives of the Charging Party and collectively bargain over wages, hours, and other terms and conditions of employment.
Respondent shall further meet with representatives of the Charging Party and bargain in good faith with respect to the monetary benefits sought by the bargaining representative for fiscal year 1976-77.
Respondent shall conspicuously post copies of the attached Notice marked "Appendix." Copies of the Notice provided by the Public Employees Relations Commission shall be signed by Respondent's authorized representative prior to posting and shall be posted by Respondent immediately upon receipt in conspicuous places, including all places where notices to employees are customarily posted. Respondent shall maintain the posting for sixty (60) consecutive days and shall take reasonable steps to insure that said notices are not altered, defaced or covered by any other material.
Respondent shall notify the Chairman of the Commission in writing within twenty (20) calendar days from receipt of this decision of the measures that have been taken to comply herewith.
It is so ordered.
PUBLIC EMPLOYEES RELATIONS COMMISSION LEONARD A. CARSON, CHAIRMAN
ROSE MARY W. FILIPOWICZ, COMMISSIONER THOMAS F. LANG, COMMISSIONER
For and By Direction of the
PUBLIC EMPLOYEES RELATIONS COMMISSION
LEONARD A. CARSON CHAIRMAN
770-202
THIS IS TO CERTIFY that on
May 20, 1977, this
document was filed in the office of the Public Employees Relations Commission at Tallahassee, and a copy served on each party at its last known address by certified mail.
PUBLIC EMPLOYEES RELATIONS COMMISSION
BY: A. M. Park
Clerk-Editor TITLE
ENDNOTES
1/ An investigation was conducted by a PERC agent pursuant to Section 447.503, Fla. Stat. (1975), and Fla. Admin. Code Rule 8H-4.02(a). Therefore the complaint was issued by the Acting General Counsel pursuant to Fla. Admin. Code Rule 8H-4.03.
2/ The charge was filed with the Commission on July 9, 1976. A copy of the charge was served on Respondent on or about July 27, 1976. The complaint, issued August 25, 1976, included a Notice of Hearing informing the parties that a hearing would be conducted pursuant to Section 447.503(3)(a), Fla. Stat. (1976), and Fla. Admin. Code Rule 8H-4.03, 4.08, and 4.10, on September 9 and 10, 1976. By stipulation of the parties, the hearing was continued to October 6
- 7, 1976, in Jacksonville and was conducted by a Hearing Officer from the Department of Administration, Division of Administrative Hearings.
3/ At the hearing, the parties were afforded the opportunity to appear, to examine and cross-examine witnesses and to introduce relevant evidence.
4/ On February 28, 1977, the parties were notified that a proceeding would be held pursuant to Section 447.503(4), Fla. Stat. (1975), and Fla. Admin. Code Rule 8H-4.17. The proceeding was held on March 14, 1977, before the Public Employees Relations Commission.
5/ Section 447.501(1)(c) of the Act is substantively identical to its corollary provision in the National Labor Relations Act, 29 U.S.C.A. Section 148(a)(5).
Therefore, discussion of NLRB precedent is probative, but in no way considered binding.
6/ The Legislature has implemented Art. IX, Section 4(b) by the enactment of Ch. 230, Fla. Stat. (1975), which provides the statutory authority for school boards in Florida. Ch. 230, Fla. Stat., specifically delineates the general powers of school boards, their organization, delegation of control and supervision and related matters.
7/ Art. I, Section 6, Fla. Const. has been found to be the fountainhead of the right of public employees to collectively bargain in Florida. Dade County Classroom Teachers Association v. Ryan , 225 So.2d 903 (Fla. 1969).
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1990 | Final Order filed. |
| Nov. 22, 1976 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 20, 1977 | Agency Final Order | |
| Nov. 22, 1976 | Recommended Order | Recommend respondent cease bad faith/surface bargaining practices concerning pay, wages, hours etc. with petitioner and engage in good faith bargaining. |
