STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF ST. PETERSBURG, )

)

Respondent, )

)

and ) CASE NO. 76-2211

) PERC NOS. 8H-766-2174

PINELLAS COUNTY POLICE BENEVOLENT ) 1196 and 1197 ASSOCIATION; LOCAL 747, )

INTERNATIONAL ASSOCIATION OF ) FIREFIGHTERS AND INTERNATIONAL ) BROTHERHOOD OF FIREMEN & OILERS, )

LOCAL number 1220, )

)

Charging Parties. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James S. Bradwell, held a consolidated hearing in this cause on March 3, 1977, in St. Petersburg, Florida, based on complaints issued by the General Counsel of the Public Employees Relations Commission, on February 16, 1977.

APPEARANCES

C. Anthony Cleveland, Esquire

Staff Attorney for William E. Powers, Jr. General Counsel

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Rod W. Smith, Esquire Post Office Box 508

Gainesville, Florida 32602

Attorney for International Association of Firefighters, Local number 747

John C. Wolfe, Esquire Post Office Box 2842

St. Petersburg, Florida 33731 Attorney for Respondent

Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue

Miami, Florida 33132

Attorney for the Pinellas County Police Benevolent Association

ISSUES

The issues in this case are whether or not Respondent:

1. During the course of its negotiations for collective bargaining agreements for the above charging parties which are certified employee organizations representing various units of Respondent's employees, interfered with restrained or otherwise coerced employees in violation of Chapter 447.501(1)(a), Florida Statutes, (herein sometimes called the Act).

   
   

2. Refused to bargain in good faith with the charging parties as certified bargaining agents of its employees, in violation of Chapter 447.501(1)(c) of the Act.

   
   

3. Refused to discuss grievances in good faith pursuant to the terms of collective bargaining agreements in violation of Chapter 447.501(1)(f) of the Act.

At the close of the testimony all parties waived oral argument, but briefs were filed by the General Counsel of the Public Employees Relations Commission (herein sometimes referred to as the Commission), Counsels for the International Association of Firefighters, Local number 747 (herein IAFF) and the Respondent which have been carefully considered by me in preparation of this recommended order which will be distributed to the parties in the usual course.

Upon the entire record in this case, observation of witnesses on the stand, and consideration of arguments of counsel, I make the following:

FINDINGS OF FACT

1. The complaints allege, the parties admit and I find that the Respondent is a public employer within the meaning of Chapter 447. The complaints allege further, the parties admit and I find that the Charging Parties are certified employee organizations which represent various employees of the Respondent in units which will be set forth in detail hereinafter.

   
   

2. During 1976, all three employee organizations were parties to collective bargaining agreements with the employer which expired on September 30, 1976. Respondent began negotiation with the Pinellas County Police Benevolent Association, PBA, herein, on March 10, 1976, with the IAFF on April 29, 1976 and with the International Brotherhood of Firemen & Oilers, Local 1220 (IBF&O herein) on August 9, 1976. After numerous negotiation sessions, the statutory impasse procedures were invoked and hearings were held before a special master on September 27 and 28, 1976. However, subsequent to the invocation of the impasse procedures and prior to the special master hearings, the parties proceeded through mediation and continued bargaining sessions until or about September 16, 1976. On August 4, 1976, the City Council met in a "workshop session" and abolished the step-merit increase pay plan which had been in effect for several years. The step-merit increase pay plan had been a principle item of contention between the parties in bargaining and was one of the three issues submitted to the special master during hearings on September 27 and 28. Other issues of whether or not changes should be made in the pay plan provisions for firefighters and lieutenants and whether changes should be made in the acting officer pay policy provisions were also submitted to the special master. The following day, on August 5, the City's chief negotiator, Robert DuVernoy, was instructed by the City Manager that the City Council had directed the step-merit increase pay plan be abolished. On September 29, 1976, the

   Respondent, through its chief negotiator Robert E. DuVernoy, notified the presidents of all three Charging Parties that wages would be frozen at September 30th levels allegedly due to expiration of the various contracts. Additionally, on October 6, 1976, Respondent informed the IAFF that effective October 4, 1976, the following terms and conditions of employment would be unilaterally altered: increase in "checkoff" fee from $.04 per individual to $500.00 for processing all payroll deductions for fiscal year 1976-77; the employee organization grievance procedure, the sick leave provision for family illness, the "step- merit increase pay plan" and the withholding of increments arising under said plan, the acting officers program, insurance coverage for non-high risk on-duty injury and the physical exam program were all deleted. Respondent announced its plan to reduce from $5,000.00 to $2,000.00 its life and accidental death and dismemberment insurance. All of these changes were in fact implemented as reported by Respondent. Subsequent to September 29, 1976, the Respondent refused to process grievances concerning nonpayment of step increments filed by employees represented by IBF&O stating that the subject matter of such grievances was nongrievable and inappropriate. Pursuant to the step-merit increase pay plan contained in each of the parties' collective bargaining agreements, employees were eligible for an evaluation on their anniversary date and assuming that their evaluation was satisfactory, they were entitled to a step increase pursuant to a contractual salary schedule. Testimony reveals that these increases were granted almost automatically and that the plan had been operative since 1972.

   
   

   THE POSITION OF THE RESPONDENT

   
   

3. The Respondent, in its answer and during the course of the hearing, denied the commission of any unfair labor practices. Respondent urges that pursuant to its inherent managerial rights in the procedure delineated in the impasse resolution provisions of the statute, the legislative body through its political process determined the level of services to be offered to the City August 5, 1976, and the substantive conditions of employment for bargaining units when they took final contract action in "the public interest". Respondent alleges further that the executive branch geared to the legislative process, conducted meaningful negotiations at the table which continued through the special master's proceedings with the PBA and IAFF and that only when the opportunity to reach agreement at the table was exhausted, an agreement had to be reached and with the budget having been determined, the City had no alternative but to eliminate the merit step plan, the grievance procedure and checkoff fee once the contract expired. With respect to the other changes, Respondent insists that such changes amounted only to implementation of its last best offer at the bargaining table and was therefore legitimate and proper. As regards the IAFF, Respondent urges that it has no standing to now complain since it waived any rights it had under the expired 75-76 collective bargaining agreement. Respecting the allegations of the IBF&O, the Respondent alleges that that organization recognized the circumstantial dilemma that the City faced and hammered out a collective bargaining agreement through the negotiating sessions.

   
   

4. All parties agreed that after invocation of the statutory impasse procedures, the parties continued to negotiate and in fact movement was made with respect to those issues pending.

   
   

5. The parties recognized and agreed that based on the newness of the Florida Statute which regulates collective bargaining in the public sector i.e., Chapter 447, that lessons gained from other state boards and the federal sector are instructive and are useful in resolving similar issues arising in this state. Turning to such cases, the NLRB has long recognized that an employer's

   unilateral action with respect to a mandatory subject of bargaining is a per se violation of Section 8(a)5 of the National Labor Relations Act, 29 U.S.C.A., Section 151 et seq. Such a position was sustained by the United States Supreme Court in NLRB v. Katz, 369 U.S. 736 (1962). In Katz, the Supreme Court was confronted with the issue of whether an employer could unilaterally change its sick leave plan and system of wage increase reached during negotiations between the employer and the bargaining agent. In reaching its decision, the court found that the employer was not at liberty to institute changes respecting mandatory subjects of bargaining during the course of negotiations. 369 U.S. at 737. The court disregarded the necessity of establishing whether or not the employer's conduct evidenced an absence of objective good faith and aid such conduct amounted to per se violations and was a circumvention of the duty to negotiate. Other states have reached a similar result in assessing whether or not such conduct amounted to a violation of the duty to bargain. The undersigned has considered the exceptions which have been recognized i.e., waiver, necessity and impasse, and concludes that they are not operative based on evidence adduced herein. Evidence reveals that while the changes were implemented herein, negotiations were ongoing and the Respondent admits that movement was in fact made while the negotiating process was occurring. It was also noted that the matters in which the Respondent unilaterally changed were principle subjects affecting the terms and conditions of employment of its employees. For example, the step-merit increase pay plan had been operative for at least 5 years and in view of the customary grant of the increase, the employees continued to expect such increases. Based thereon, and in view of the fact that negotiations were ongoing and no exceptions to the per se rule were established as being operative herein, I find that the employer's conduct in unilaterally implementing the changes except as noted hereinafter, amounted to a violation of its duty to bargain in good faith within the meaning of Chapter 447.501(1)(c) and derivatively a violation of Chapter 447.501(1)(a), Florida Statutes.

   
   

6. Respecting the allegation that the Respondent refused to process a grievance which arose after the expiration of the parties' bargaining agreement, the undersigned is of the opinion that the employer was not obliged to continue to process grievances pursuant to the grievance arbitration machinery provision contained in an expired contract since such obligations have been universally recognized to be contractual in nature which may be terminated during the contract hiatus. (See for example Hilton Davis Chemical Co., Division of Sterling Drugs 185 NLRB No. 58.)

   
   

7. Based on the foregoing findings and conclusions, I hereby make the following:

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The authority of PERC is derived from Chapter 447, Florida Statutes.

   
   

10. The Respondent is a public Employer within the meaning of Chapter 447, Florida Statutes.

    
    

11. The Charging Parties are employee organizations within the meaning of Chapter 447, Florida Statutes and are certified to represent employees of Respondent in the following units:

    1. PBA

       
       

       1. All police officers below the rank of sergeants, identification technicians, and fingerprint technicians excluding all other ranks and positions.

       2. All sergeants and lieutenants excluding all other ranks and positions.

          
          

    2. Local number 747, International Association of Firefighters

       
       

       INCLUDED: All fire department personnel employed in the classifications of firefighters up to and including lieutenants.

       
       

       EXCLUDED: All other ranks and positions.

       
       

    3. International Brotherhood of Firemen & Oilers Local number 1220

    
    

    INCLUDED: All blue-collar workers.

    
    

    EXCLUDED: All employees at the foreman level or above; all sworn police and fire department personnel; all clerical

    personnel; all managerial and confidential personnel, and all other City employees.

    
    

12. By unilaterally altering various terms and conditions of employment as set forth above, during the pendency of the collective bargaining process, the Respondent violated Section 447.501(1)(a) and (c), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law I shall therefore recommend that the Respondent:

1. Make whole any affected employees by returning to them any and all benefits, financial or otherwise, lost as a result of its unilateral action which is or has not been presently restored.

   
   

2. Post at its facilities in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain in good faith by changing terms and conditions of employment and thereby altering the status quo during the period in which the collective bargaining process is continuing.

   
   

3. In all other respects, I hereby recommend that the complaint be dismissed.

DONE AND ENTERED this 3rd day of May, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings

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

COPIES FURNISHED:

Anthony Cleveland, Esquire

Staff Attorney for William E. Powers, Jr. General Counsel

Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300

Tallahassee, Florida 32301

Rod W. Smith, Esquire Post Office Box 508

Gainesville, Florida 32602

John C. Wolfe, Esquire Post Office Box 2842

St. Petersburg, Florida 33731

Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue

Miami, Florida 33132

Docket for Case No: 76-002211

Orders for Case No: 76-002211