Findings Of Fact There have been no significant changes in the organizational structure of the Public Employer since August, 1975. The duties, responsibilities, and day-to-day activities of persons who occupy given job titles within the Public Employer have not changed in any significant respect since August, 1975. The Findings of Fact set out in the Hearing Officer's Report entered on October 20, 1975 have continued vitality, and are hereby incorporated into this report as Findings of Fact as fully as if they were set out in full herein. The Sheriff of Brevard County is an officer who holds his position by virtue of Article VIII, Section 1(d) of the Constitution of the State of Florida. The duties, responsibilities, and powers of the Sheriff of Brevard County are delineated in Florida Statutes Ch. 30. There are no special statutes which alter the provisions of Ch. 30 with respect to the Sheriff of Brevard County. The organizational structure of the Public Employer is accurately described in an organizational chart which was received in evidence at the hearing as Public Employer's Exhibit 8. The organization structure is set out with more detail in a personnel roster which was received in evidence as Public Employer's Exhibit 2. The job descriptions of all job positions within the Public Employer were compiled and presented into evidence as Public Employer's Exhibit 5. The job descriptions accurately reflect the qualifications for each position, and the duties, responsibilities, and day-to-day activities of persons who fill the positions. The duties, responsibilities, and day-to-day activities of the employees are more fully described in the testimony of chief supervisory personnel of each division. 5 The functions of the Public Employer are divided among eleven divisions. The functions are appropriately and efficiently divided in this manner; however, there are features of the Public Employer which make generalizations difficult. A lieutenant in Division Four - Uniform Division has supervisory functions that are very different from the supervisory functions of a lieutenant in another division. Similarly the two sergeants in Division Ten - Headquarters Squad have profound supervisory functions which will not find their equivalent with sergeants in Division Eight - Communications. In defining an appropriate collective bargaining unit, it is important to consider each job title within each division separately. ENTERED this 3rd day of August, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph R. Moss, Esquire MOSS & HOLCOMB 653 Brevard Avenue Post Office Box 1907 Cocoa, Florida 32922 Phillip Nohrr, Esquire NOHRR & NOHRR Post Office Box 369 Melbourne, Florida 32901 Geoffrey B. Dobson, Esquire 1311 Executive Center Drive Suite 251 Tallahassee, Florida 32301 Curtis L. Mack, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301
Findings Of Fact The petition herein was dated January 9, 1975 by Petitioner, and was filed with PERC on January 17, 1975. (Hearing Officer's Exhibit 1). The hearing was properly scheduled by notice dated March 26, 1975, and was conducted on April 17, 1975, by agreement of the parties. (Hearing Officer's Exhibit 2, Tr. 10, 11). The Town of Palm Beach is a public employer within the meaning of Fla. Stat. Section 447.002(2). (Stipulation, Tr. 5, 6). The Town of Palm Beach Association of Firefighters, Local 1866, is an employee organization within the meaning of Fla. Stat. Section 447.002(10). (Stipulation, Tr. 6-8). During the course of the past five years, Petitioner has requested recognition, or has otherwise sought to engage in collective bargaining with the Public Employer on several occasions through written and oral communications. Most recently Petitioner sought recognition through letters dated December 28, 1974, and April 11, 1975. (Tr 85-240, Petitioner's Exhibits 1, 2). There is no contractual bar to holding an election in this case. (Stipulation, Tr. 9, 10). The parties have not engaged in collective bargaining under the auspices of the Public Employees Relations Act. The parties engaged in collective bargaining in a limited fashion prior to the passage of the Act. Efforts on Petitioner's part to engage in collective bargaining with the public employer began in 1969. (Tr. 85-240, Petitioner's Exhibits 1-23). Registration material delivered by Petitioner to PERC was dated January 7, 1975, and was received by PERC on January 13, 1975. Additional materials were received by PERC on February 10, 1975. PERC acknowledged receipt of the registration material on February 10, 1975. The Public Employer contended at the hearing that registration was not proper because the source of certain funds was not adequately revealed. PERC has previously concluded that registration was complete and proper. (PERC registration File No. 8G-OR-756-1044, TR 11-15, 22-27, 225-238; Hearing Officer's Exhibit 3; Petitioner's Exhibit 4). Petitioner filed the requisite showing of interest with its petition. The Public Employer has asserted that the showing of interest is not adequate, however, no evidence was presented to counter the administrative determination previously made by PERC. (Hearing Officer's Exhibit 4; Tr 16, 17; Public Employer's Motion to Dismiss). There are between forty-five and fifty-five persons in the unit proposed by Petitioner. All of the employees within the proposed unit are engaged in firefighting and/or paramedical rescue operations. The employees within the proposed unit work the same twenty-four hours on duty, forty-eight hours off duty shift. They eat and sleep in the same area while on duty, and wear the same or similar uniforms. There is a significant amount of interchange in duties among the employees. Wages and other terms of employment, job and salary classifications are determined for all of the employees within the proposed unit in the same manner. The bargaining history indicates a firm desire on the part of the employees to belong to a unit such as Petitioner proposes. (Tr 148-151,298-345, 369-372). The Public Employer contends that the only appropriate unit would include all public safety employees. No direct testimony was offered in support of this contention. Direct and cross-examination of Petitioner's witnesses indicate that the fire department and other public safety departments do not generally work together. Firefighters do not perform police functions or lifeguard functions. Police and lifeguards do not perform fire department functions. There is no interchange of employees between the departments, although there was evidence presented that transfers between the departments do occur. (Tr 148-151, 298-345, 369-372). Fire lieutenants are the senior officers in charge of each shift at two of the Town's three fire stations. Captains are in charge of shifts at the headquarters fire station. Fire lieutenants have four persons working under them. Fire lieutenants work the same shift as the other firefighters, wear the same uniform with no adornment of any kind, perform the same daily duties such as cleaning equipment, and teaching or participating in classes and training exercises. They perform the same firefighting duties. The fire lieutenant is charged with filling out a log book, checking the roster, answering the radio, preparing training schedules, and filling out fire reports, which duties the other firefighters do not generally perform. The fire lieutenants fill out evaluation reports on personnel who work on their shifts. The personnel are graded numerically from one to ten in approximately twenty categories, e.g., public contact and taking directions. These reports form a part of the procedure through which an employee is granted or denied a merit pay increase or is granted or denied a promotion. If an employee who works under a lieutenant has a grievance, the lieutenant is the person to whom the grievance is first carried. The lieutenant is the person in charge of maintaining order at the fire station and is in charge of any fire operations until a senior officer arrives on the scene. The fire lieutenants report directly to fire captains. The lieutenant takes no direct roll, other than making reports, in hiring, firing, promotion or transferring employees. The lieutenant is not responsible for personnel administration nor for collective bargaining. He takes no roll in formulating or administering the budget. Lieutenants and captains do not perform any functions as a group. Lieutenant Walker indicated that he has never attended a meeting at which lieutenants and captains met as a group. If a lieutenant or a captain is absent from work, other personnel fill the position. Val Williams, a pumper/operator, has served as a captain for as long a period as two months. (Tr 248-296, 302-319, 315-332; Petitioner's Exhibits 24, 25, 26). Fire captains perform generally the same duties and fulfill the same rolls as fire lieutenants. Captains head the shifts at the headquarters stations. In addition to duties performed by lieutenants, captains conduct fire inspections, and serve as the next step in the chain of command above lieutenants. Captains answer directly to the assistant fire chief. (Tr 259-61, 334; Petitioner's Exhibits 24, 25, 26). Assistant fire chiefs are in charge of each shift for all three fire stations. They oversee the operations of each station, and visit each station on at least one occasion during the course of each shift. Assistant fire chiefs answer to the deputy chief; the deputy chief answers to the chief; the chief answers to the town manager. (Tr 265-66, Petitioner's Exhibits 24, 25, 26). Mobile Intensive Care Unit (MICU) attendants and driver/operators, and paramedic specialists work the same shifts and wear the same uniforms as firefighters. Each is paid approximately five percent more than a firefighter who has been employed for the sane period of time. Driver/operators answer fire calls, drive to the fire with a firefighter, and occasionally fight fires. They answer directly to lieutenants. Paramedic specialists answer directly to the deputy fire chief. Paramedic specialists receive extensive training apart from firefighting training. Paramedic specialists answer fire calls, but the testimony was not clear as to whether they are permitted to fight fires. Paramedic specialists do not perform any personnel administration or policy making roll. (Tr 333, 334, 346-358, 373-386). There are one clerk and one mechanic who work with the fire department. They apparently answer to the fire chief. Each works an eight hour day, five days weekly. They do not work directly with firefighters. (Tr 330- 333).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
Findings Of Fact The petition herein was filed by Petitioner with PERC on July 16, 1975. (Hearing Officer's Exhibit 1). The hearing in the case was scheduled by notice dated October 14, 1975. (Hearing Officer's Exhibit 2). Alachua County is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (Stipulation TR 4). The Petitioner is an association affiliated with the Laborers' International Union of North America. Petitioner is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner has not been certified by PERC to serve as the bargaining representative of any unit of public employees. Other affiliates of the Laborers' International Union of North America have been certified. Petitioner has requested recognition as the exclusive bargaining agent of a unit of employees of the Public Employer, and the request has been denied. (Stipulation TR 4, 5). There is no contract bar to holding an election in the collective bargaining unit proposed by the Petitioner; however, non-sworn employees of the Sheriff's Department in Alachua County have previously been represented by another employee organization, and these employees would be included in the unit proposed by the Public Employer. The Public Employer contends that it is the co-employer of employees in the Sheriff's Department. PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. Petitioner submitted approximately 75 authorization cards to PERC with its petition. In its petition the Petitioner estimated the number of employees in the proposed unit as approximately 100. The Public Employer subsequently submitted a list of employees within the proposed unit to PERC and that list indicates that the unit would include 212 persons. PERC officials found some of the authorization cards offered by the Petitioner to be insufficient. Sixty one cards were found by PERC to be properly signed and dated and on the list of employees submitted by the Public Employer. This was less than the 30 percent showing of interest required by PERC rules. On the day of the hearing, the Petitioner submitted 11 additional authorization cards to the undersigned. The undersigned checked the cards against the Public Employer's list, and found 4 additional cards that were properly signed, were on the list, and were not duplications. These cards have been submitted to PERC for further consideration. The Board of County Commissioners is the legislative body of the Public Employer. The County Administrator is appointed by the Board of County Commissioners and is responsible to that Board for the administration of most of the Public Employer's departments. The County Engineer is appointed by the Board of County Commissioners, and is responsible to that Board for the administration of the Vehicle Inspection Station, the Mosquito Control Department, and the Road Department. The organizational structure of the Public Employer is accurately portrayed in Public Employer's Exhibit 1. The Public Employer employs approximately 756 persons on a full-time basis. The collective bargaining unit proposed by the Public Employer would include 401 persons. It is difficult to determine from the description of the proposed unit as stated in the petition, or from the description of the unit as amended at the hearing, how many employees would be included within the Petitioner's proposed unit. It can be estimated the proposed unit would include 200 employees. Job descriptions of the personnel employed by the Public Employer were offered into evidence and were received. These job descriptions accurately describe the duties, responsibilities, and day-to-day work of the employees. The parties stipulated and agreed at the hearing that the following employees should be excluded from any collective bargaining unit certified by PERC: the Assistant Supervisor of Building Maintenance, and the Building Maintenance Supervisor; the Mechanic Foreman in the Regional Transit Department; the Road Superintendent; the Assistant County Engineer, and the County Engineer; the Main Assistant Director of Mosquito Control; the Supervisor of Animal Control; the Manager of the Motor Vehicle Inspection Station, and the Lane Supervisor; the Superintendent of Refuse Collection, and the Supervisor of Refuse Collection; the Superintendent of Land Fill; the Director of Waste Control, and the Assistant Administrator. The County Administrator, the County Engineer, and the County Attorney are all appointed by and serve at the pleasure of the Board of County Commissioners. The salaries of these persons are determined by the Board. All other employees are appointed at the direction of one of these three persons. The salaries of all other employees are set by the County Administrator, the County Engineer, or the County Attorney within the limits of the Position Classification and Pay Plan Review for Alachua County, Florida. This document was received in evidence as Public Employer's Exhibit 2. The limits set out in Public Employer's Exhibit 2 leave relatively minor discretion in setting wages with the County Administrator, County Engineer, and County Attorney. Wages, hours, holidays, vacations and other benefits and terms and conditions of employment are established for all county employees by the County Commission. Employees of the Public Employer are given first opportunity to fill job vacancies which occur in the county. Mechanics, drivers, vehicle operators, and clerical and secretarial employees are employed in various departments, and frequently are transferred from one department to another. Petitioner expressed its preference to represent units of employees which do not include both blue collar and white collar employees. No evidence was offered at the hearing to show any specific conflict of interest between blue collar and white collar employees of the Public Employer. ENTERED this 5 day of March, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Roy O. Scherer 6372 Rambler Drive Pensacola, Florida 32505 Representative for Petitioner Norm La Coe Office of the County Attorney Alachua County Courthouse Gainesville, Florida 32601 Attorney for Public Employer Curtis L. Mack, Chairman Public Employees Relations Commission Suite 105, 2005 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. 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 Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. 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, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
The Issue Whether there is just cause to terminate Respondent's employment with the Monroe County School Board.
Findings Of Fact Petitioner is the entity charged with the responsibility to operate, control, and supervise the public schools within Monroe County, Florida. At all times material to this proceeding, Petitioner employed Respondent as a non-probationary air-conditioning mechanic in the Upper Keys. As noted previously, Petitioner initiated the instant cause against Respondent on January 19, 2012. In a letter signed by the superintendent of schools on that date, Petitioner advised Respondent that it intended to terminate his employment: [F]or willful violation of school board policy, 4210(I), (L) and (Q), by theft of time, inappropriate use of a District owned vehicle, and by making fraudulent statements in required District paperwork, all of which are grounds for discipline up to and including termination. * * * This action is being taken in accordance with School Board Policies . . . and the Collective Bargaining Agreement. (emphasis added). The above-quoted language notwithstanding, Petitioner's Administrative Complaint ("Complaint"), filed contemporaneously with the superintendent's letter, does not purport to discipline Respondent in accordance the collective bargaining agreement,1/ the terms of which are neither referenced in the Complaint nor included in the instant record——a fatal error, as explained later. Instead, Petitioner seeks in its Complaint to terminate Respondent's employment based solely upon alleged violations of School Board Policy 4210 (specifically, subsections I, L, and Q), which provides, in relevant part: 4210 – Standard for Ethical Conduct An effective educational program requires the services of men and women of integrity, high ideals, and human understanding. The School Board expects all support staff members to maintain and promote these essentials. Furthermore, the School Board hereby establishes the following as the standards of ethical conduct for all support staff members in the District who have direct access to students: A support staff member with direct access to students shall: * * * not use institutional privileges for personal gain or advantage. * * * L. maintain honesty in all dealings. * * * Q. not submit fraudulent information on any document in connection with employment. (emphasis added). Significantly, the record is devoid of evidence that Respondent has direct access to students, and the nature of Respondent's position (an air-conditioning mechanic) does not permit the undersigned to infer as much; therefore, Petitioner has failed to demonstrate that Respondent is subject to the proscriptions of School Board Policy 4210. In light of these unique circumstances——i.e., Petitioner has not proceeded against Respondent under the terms of the collective bargaining agreement (as it should have), but rather, under a school board policy that applies only to employees that have direct access to students——it is unnecessary to reach the merits of the underlying allegations of misconduct.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Monroe County School Board enter a final order: dismissing the Administrative Complaint; and immediately reinstating Respondent's employment. DONE AND ENTERED this 21st day of June, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2012.
The Issue The issues in the case are whether or not the Respondent (1) during the course of an organizing campaign by the Union engaged in a course of conduct amounting to unlawful surveillance and/or creation of the impression of surveillance (2) whether or not Respondent unlawfully refused to bargain in good faith with the Union and (3) whether or not Respondent unlawfully refused to execute dues checkoff authorizations signed by its employees. By the alleged acts referred above, the Respondent allegedly engaged in unfair labor practices affecting the orderly and uninterrupted operations and functions of government within the meaning of Florida Statutes 447. As stated, these issues arise on a complaint issued October 16, by the acting general counsel of the Public Employees Relations Commission (hereinafter referred to as PERC), as amended at the trial after PERC's investigation of-the charges filed by the Union on various dates. The Respondent denied the commission of any unfair labor practices. At close of the testimony all parties waived oral argument. A brief has been received by counsel for the general counsel and has been carefully considered by me in preparation of this hearing officer's report and recommended order which was signed and released by me on March 17, 1976, for distribution to the parties in the usual course. Upon the entire record in the case, observation of witnesses on the stand, and considerations of arguments of counsel, I make the following:
Findings Of Fact Respondent's operation and the status of the Union. 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 Union is an employee organization within the meaning of Section 447.203(2) of the Public Employees Relations Act (hereinafter referred to as the Act). The Union was certified by the Commission on April 22, order no. 75E-6-31 and the parties commenced bargaining on or about April 23, 1975, and notice of negotiations was forwarded to the Commission's office on or about May 5, 1975. By way of background, the case was originally noticed for hearing to commence on October 29 and 30, 1975, in the Escambia County Courthouse. The Respondent, on October 29, applied for and obtained a temporary restraining order which had the effect of commanding the Public Employees Relations Commission to refrain from conducting or attempting to conduct the hearing based on the charges alleged in the subject complaint and notice of hearing. On the following day, the School Board filed a non-suit which had the effect of resolving the temporary restraining order. Prior thereto and subsequent to the non-suit, the Respondent filed numerous motions for continuance and dismissal based on alleged procedural violations. The basis of the procedural deficiencies were that (1) PERC failed to advise the Respondent of its investigation prior to issuing complaint and therefore the complaint was improperly issued. Additionally, the Respondent alleged that it has filed charges of a similar nature against the Union and that PERC has failed to expedite investigation of said charges which according to Respondent, amounts to violations of bad faith bargaining by the Union also in violation of Florida Statutes 447. Accordingly, Respondent asked that continuance be granted and that a period somewhere in the nature of 30 days be allowed to consider the charges alleged. Respondent also filed motions to dismiss alleging inter alia, that the charges filed by the Charging Party are false and groundless and that representatives of the Charging Party and PERC's agents have colluded to effectuate violations of its rules and enabling statutes as set forth in the complaint. Based thereon states the Respondent, it has been deprived of its opportunity for investigation and defense of the matters asserted in the administrative charges and the complaint and therefore the complaint should be dismissed. Aside from the fact that the hearing officer is without the authority to grant motions to dismiss, looking to the motion to dismiss and the motion for continuance, no evidence other than the bare claims were made to substantiate all of the allegations contained in both the motion to dismiss and the motion for continuance. Accordingly they are tentatively denied by the undersigned and the motion to dismiss is referred to PERC for final ruling. Respondent's counsel also made a motion for continuance on the final day of the hearing and as grounds therefor alleged that he had been recently retained. Aside from the fact that the testimony revealed that the law firm had been retained to represent Respondent months prior to the instant hearing, Dr. Moses, Respondent's chief negotiator under- took to represent Respondent at the hearing. Additionally, the motion was denied as being untimely filed. THE REFUSAL TO DEDUCT DUES ISSUE Guy Price, Special Education Teacher for approximately 4- 1/2 years, testified that he is a union member and that he signed a dues deduction authorization form in 1971. 2/ Price testified that the Respondent has refused to deduct dues since on or about July. He testified that the Respondent caused to be circulated in October, a notice which indicated it would only deduct dues pursuant to authorizations on a lump sum basis for the yearly dues which, according to the testimony, amounted to $110.00. He testified that inasmuch as he could not afford the lump sum deduction, he canceled his authorization go or about October 6. He testified that he was aware personally of approximately 10 other employees who canceled their dues deduction authorization based on the fact that according to his testimony, they were unable to afford a lump sum deduction. He testified that the Respondent permits piece meal deductions of other organizational and benefit drives whereas it refused to do so in this case. On cross-examination, he testified that during the months of March thru June, no deductions were made. On redirect examination, he reiterated his prior testimony that he canceled his dues deduction authorization based on the fact that he could not afford the lump sum payment as indicated by the Respondent's notice to employees. Carl Ledehman, an employee for approximately 18 months and a Union member indicated that he canceled his dues deduction authorization based on the fact that he too could not afford a lump sum deduction as testified to by Guy Price. He testified that the Respondent indicated sometime in early October that it would only deduct Union dues in a lump sum fashion and that based on this announcement, 3/ he then canceled his dues deduction. He testified that inasmuch as the Respondent indicated that it would only deduct dues pursuant to a lump sum method, he canceled his authorization and that he did so for no other purpose. He testified as did Mr. Price that to his knowledge, the Respondent deducts contributions for hospital, cancer and the united givers fund as well as other benevolent and humanitarian purposes. Albert M. Robuck, an employee for approximately 6 years, testified that he, signed a dues deduction authorization form yearly and that the employer refused, sometime in October, to deduct dues on a monthly basis. He testified that he received several memos citing in essence that Respondent would only deduct dues on a lump sum basis. Based on this statement, he canceled his dues deduction authorization on or about October 12, and that along with his cancellation, approximately three other teachers canceled their dues deduction authorization. He testified that he was aware that the employer is presently deducting health insurance, annuities and other deductions monthly. Jackie Barrineau, the Union's Chairperson and an employee for approximately three years as a teacher, testified that she has been a Union member throughout her employment with the Respondent. She testified that the Respondent submitted what she considered to be exorbitant proposals for the cost of processing the dues deductions and that the proposals ranged from $12,500.00 annually to its last offer which amounted to .05 per card per month for each employee utilizing the dues deduction procedure. On April 21, 1975, she testified that the Union agreed to pay $325.00 for dues deduction for the remainder of the school year, whereas the Employer on July 15, proposed the amount of $12,500.00 for dues deduction. She testified that the Employer amended its position and countered with the same figure it had originally proposed. Approximately two days later on July 17, the board reduced its cost for processing dues deductions and reduced the $12,500.00 figure to .50 per card per month for each employee utilizing dues deduction. In late July the parties declared an impasse and during the numerous proposals which were submitted during the impasse on or about September 4, the Respondent resubmitted the $12,000.00 figure as the cost for deducting dues. See for example Charging Party's Exhibit 7 received in evidence and is made a part hereof by reference. She testified that despite the adamant position taken by the Respondent on dues deduction, she did not cancel her dues authorization. On cross-examination she corroborated the fact that the parties tentatively agreed to a provision whereby the Respondent would deduct .05 per card for each member utilizing the dues deduction authorization procedure. The Employer advised that it had received legal advice regarding the legality of the notice given employees whereby it would only deduct dues in a lump sum and that a local attorney, William Davenport, advised that that procedure was permissible. She testified that she is charged with giving collective bargaining advice to all employees within the County School System. She testified as to a problem the Respondent advised that it had relative to incorrect signatures and improper amounts being recorded on dues authorization cards and that that was part of the stated motivation for the Employer cancelling the procedure of deducting dues on a monthly basis. She testified that as to the Respondent's release of its intention to deduct dues only on a lump sum basis, a substantial number of employees withdrew from the Union. The Respondent also claims that it refused to honor existing dues authorizations which were executed by its employees because numerous cards were either incorrectly executed or were undated. There is nothing in Section 447.303, F.S., which saddles Respondent with the responsibility of insuring that dues deduction authorizations are properly executed. Nor was there any credible testimony from any employee that dues deductions were being made without their express authorization. It thus appears that the Respondent's stated concern about the legality or propriety of the dues authorizations was nothing more than a pretext to effectuate its real desire of securing from employees mass cancellation of their dues authorizations and thus stifle the Union's ability to function. This becomes more apparent when consideration is given to the Respondent's attitude at the bargaining table relative to the amount that it proposed to the Union for the administrative costs for providing the dues deduction service. Respondent maintained the same basic "no give" position on this issue until the entry of the mediator into the negotiations. Although not specifically urged by Respondent as a defense to the refusal to deduct dues allegation, small mention was made of the fact that no contract was in existence between the parties when it (Respondent) ceased to deduct dues on a monthly basis as had been its practice during the remainder of the school year following the Union's certification as exclusive bargaining representative for Respondent's instructional personnel. Inasmuch as the statute which is pertinent to dues deduction (447.303, F.S.) at no point refers to the existence of a collective bargaining agreement as a prerequisite to dues deduction authorizations, the undersigned is constrained to conclude that the statute which is specific on its face, must be applied literally. Accordingly, even if Respondent had urged that as a defense for its actions stated above, the undersigned would recommend rejection of that ground as basis for its refusal to deduct dues pursuant to authorizations. 4/ THE SURVEILLANCE ISSUE Jack Bridges, who is the Employer's Director of Industrial Services and who is responsible for the media, news releases, etc., testified that he photographed pickets who picketed the Respondent's school administration building during the summer months of 1975. He testified that Charging Party's composite of approximately 17 pictures which the Respondent utilized in order to maintain a "historical" file. He testified that he was responsible for taking approximately 7 pictures and he recognized, after having been shown Mrs. Barrineau, Martha Smith and another teacher whom he described as being an active Union supporter. He testified that there was no blocking of ingress and egress into the school building and that the pickets picketed approximately 6 times. He testified that he had received advance notice from the news paper and TV advertisements that there would be a picket at the administration building. He testified that the photos were taken to the Director of Employee Relations, Dick Phillingem. 5/ He testified that the photos were taken with the school's camera and film. Bridges further testified that there were no blacks picketing during the time the photos were made and that to the best of his recollection there were only two pickets. On cross-examination he testified that he had received advance notice of racial picketing but that no photos were made nor was the division in which he headed asked to take pictures of such demonstration. On further recross, he testified that he was, contrary to his earlier testimony, asked to take pictures of racial matters. Thomas J. Le Master, the Respondent's Assistant Superintendent for approximately 5-1/2 years, testified that the pictures were taken to determine whether or not employees were breaking the law and to place such pictures in the labor files. He testified that Phillingem asked him if he had anyone to take pictures whereupon the answer was elicited that pictures were made such that there could be a record of labor relations. He testified that he was present at a school board meeting during mid September and that the pictures were discussed at such meeting and during a further conversation with Mr. Phillingem. He testified that he talked closely and worked closely with Phillingem on all matters relating to the operation of their division. When shown the pictures in Charging Parties Exhibit 11, he was able to identify the subjects in the pictures A,D,C,F and G. He testified that he presently serves on Respondent's bargaining team and has done so since January, 1975, when the pertinent divisions of Section 447, Florida Statutes, became operative. He testified that he had not witnessed a labor trial although he had seen Charging Party's Exhibit 2 which as stated was the notice to employees regarding dues deductions. The notice bears a date of October 2nd. On cross-examination, he also testified that the pictures were shown at a public board meetings and that few comments were made regarding the subjects contained on the pictures. He testified that the file which the pictures were part of, is used in collective bargaining negotiations between the Charging Party. He did not elaborate on this point. He testified that he obtained his advance notice for the picketing through either the news paper or the television. Dick Phillingem, Manager of Employee Relations for the past year, has been employed by the Respondent for approximately 24 years in various positions. He testified that he maintained records regarding employee relations and he referred to such correspondence a "blurb" sheets and Escambia Education Association fliers. He testified that he did not talk about his prior conversation regarding this hearing. He gave Le Master instructions to take the pictures. He testified that the instructions were to take pictures of bath the pickets and the legends contained thereon. Messr. Bridges called to inform him that the pictures were to be delivered to him via a courier and that he thereafter disbursed them at the Board meeting. He utilized the pictures to keep current his file which he uses to monitor Union activity. During the normal course of his work day he spends approximately 80 percent of his time visiting teachers, coordinators and checking records on disclosures at discussions of board meetings. When asked for the purpose for which he was collecting a "history" for his files, the witness was unspecific however, he did testify that no attempts were made to utilize the pictures for reprisals. Jackie Barrineau, who previously testified, was recalled and testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that there were approximately 25 pickets and that she confronted Jack Bridges and approximately 2 other photographers whose names she did not recall and that she approached Bridges and informed him that she did not like the idea of his taking photos of her. She testified that the Union obtained a Writ of Mandamus to compel the Respondent to disclose the budget and Dr. Moses' contract with the Respondent. The pickets expressed to her their fear of retaliation for engaging in such acts. There was no blockage of ingress or egress of the school's administration building where the picketing occurred. When shown the pictures, she was able to identify most of the subjects. She testified further that the picketing was at all times peaceful. On cross-examination she also stated that she is the Union's public relations official and reiterated her identification of Mr. Bridges as one of the photographers. 6/ Dr. Ruby Jackson Gainer, a counselor dean and an employee for approximately 20 or more years, testified that she engaged In the picketing and that she was also intimidated by a managerial employee taking pictures of her while she was picketing. She testified that despite this fear, she went along with the idea of picketing because she felt "committed to her task." She recalled an incident whereby she was discharged and her tenure removed due to her engagement in a walkout during school year 1968. She testified that the employer tried to discharge her for taking two days' sick leave and that this action was turned over to the professional practices committee. On or about August 28, she testified that she was demoted from administrative dean to counselor dean and that the difference being that as counselor dean, her work station is located in an isolated area removed from the other school facilities. William McArthur, the Respondent's Personnel Director, testified that the picketing occurred in front of the school building which is where his office is located. He is a member of the board's negotiating team and he testified that he was unaware of any employees being intimidated based on their engaging in picketing. He corroborated the earlier testimony that the pickets did not block any ingress or egress to the school's administrative building. He is the custodian of the instructional personnel records and to his knowledge, there was no data placed in the personnel files regarding the picketing. He also testified that the Respondent does not maintain any separate personnel file for pickets. He testified on cross-examination, that he viewed the picture in Mr. Odom's office which were lying on his desk uncovered. He was unable to witness pickets from the school's building as was previously testified to by other witnesses. In the private sector, the NLRB has consistently held that direct surveillance by company supervisory employees or executives is intimidating and coercive. However, the mere presence of a supervisor or agent of a Respondent is insufficient to prove surveillance where such presence is not out of the ordinary. In this case, evidence reveals that the occurrence of the picketing was a matter of common knowledge throughout the county. The picket was so well known that there was extensive media coverage. The evidence reveals further that the photos were passed around at a public School Board meeting and that since that time no reprisals have been practiced upon the subjects appearing in the photographs. There was no evidence that employees' job activities were more closely scrutinized than before the picture taking episode occurred. Jackie Barrineau, a chief spokesman for the Union testified that she engaged in picketing on or about August 20, at approximately 3:30 p.m. She testified that approximately 25 pickets gathered in front of the school's administration building and that Jack Bridges and two other photographers took pictures of the pickets. She as well as other witnesses testified that they feared reprisals would be taken against them for engaging in the picketing and that they were unable to discern any useful purpose as to why the pictures were being taken by Jack Bridges. The evidence also reveals that the Respondent's agents testified that the purpose for which the photos were made was to maintain "history" for their files. Further testimony on this point, however, reveals that the photos were openly discussed at a public meeting and that no attempts were made by the Respondent and/or its agents to utilize those photos for retaliation or for any other purpose unlawful under Chapter 447, Florida Statutes. The record was barren of any evidence that the Respondent attempted to use the pictures from the pickets to substantiate retaliatory motives. While one witness testified that she was demoted because she participated in a strike several years ago, such testimony standing alone is insufficient to base a finding that the Respondent during the picketing in 1975 utilized or planned to utilize the photos for some unlawful purpose. Furthermore, there is no evidence to show that the Respondent treated picketing employees any differently than it did any other employees who engaged in the strike following the time that the photos were taken. This tends to show the exact opposite of a surveillance situation or the creation of the impression of surveillance as alleged. It is true that there was scant evidence that the Respondent utilized the materials in a file relative to labor relations matters, no ulterior or unlawful motive was attached or shown by the evidence. While one might infer or surmise that the photos would be utilized for discriminatory purposes, there was no proof of that and mere suspicion is no substitute for proof. For these reasons, the undersigned hereby recommends that the surveillance issue be dismissed for lack of proof. THE REFUSAL TO BARGAIN ISSUE Fred Haushalter, the Charging Party's Executive Director for approximately 8 years and a consultant, testified that he requested access to budget information from the comptroller and for a copy of the contract given to the Respondent's labor negotiator, Ed Moses. He testified that the request was made on or about 5 different times during the month of July, 1975. He said when Respondent refused to honor his request for budget papers at the school board meeting, the mandamus suit was filed to compel disclosure whereupon the court ordered the Respondent to turn over those documents and, ill addition, the Union was awarded attorney's fees and cost for bringing the action. He testified that the school board plead that it was unable to pay any additional salaries since revenues were right and further, that there would be no economic improvements contained in the collective bargaining agreement that the parties were negotiating. He testified that all bargaining team members were notified that there would be no economic improvements forthcoming from the Respondent. On cross-examination, he testified that he requested the school board's budget work papers and a tentative budget. He testified that bargaining commenced in late July, 1975. Specifically, he testified that he asked the comptroller, Messr. Olden, for a copy of the tentative budget. Beginning in April, 1975, the Union formally began to formulate proposals and the procedure utilized was that of past practice when the employee organization had utilized in negotiating prior contracts. By letter dated September 8, Robert C. Mott, Deputy Superintendent, stated that he was supplying, (1) a copy of the tentative 75-76 budget; (2) a copy of Dr. Moses' contract; and (3) a copy of the administrative salary schedule. He testified that of the data which was requested by the union, some could not he supplied immediately as some of it needed to be assembled. As to the other request, Mott advised that "since it related so directly to the collective bargaining scene," he would need the "legal advice" from Dr. Moses concerning that data. He concluded by stating that he would submit the requested data when he was able to either assemble it or when Dr. Moses gave him the proper advice. 7/ He testified that Moses was Respondent's chief spokesman as of May 20, and that there were approximately 13 sessions. He phoned Dr. Moses on June 12, 13, 16, 18, 19, 20, 23 and 24 and he (Moses) failed to respond to his phone calls. He had previously been advised by Dr. Moses on June 4 that a negotiating session could be arranged on June 9. He testified that when his phone calls to Dr. Moses were unanswered, he started calling the school board's secretary; Mr. Phillinger and a Mr. Davis, who according to his testimony is Dr. Moses' assistant. Davis took the message and informed him that he would give it to Dr. Moses immediately. When he spoke to Mr. Phillinger, he indicated that he would try to contact Dr. Moses as soon as possible. After approximately 10 or more phone calls, Moses returned his call on June 24, a Tuesday, and informed him that he was told that no one would be in the office until around 1:00 p.m. on that day, i.e., June 24. He testified that Phillinger, Director of Employee Relations, stated that he would contact Dr. Moses since he did not have the authority to arrange dates for collective bargaining negotiation sessions. The following day a Messr. Leper was called and he informed him of the difficulty that he had encountered in trying to contact Dr. Moses. He testified that during a two-week period he made approximately 22 phone calls to both officers of Educational Services Bureau, Inc., a consulting firm in which Dr. Moses is employed and serves as its Executive Vice President. He testified that when he finally made contact with Dr. Moses, they arranged a tentative date of July 1 to commence negotiations and that he requested dates of June 25 or 26 and to that request, Moses indicated July 1 would be the earliest date. He testified that at the July 1 session, Moses brought with him no proposals, but merely read a statement that the union's proposals were hastily prepared and irresponsible. He testified that the negotiating team which consisted of approximately 6 members began preparing the original proposal in October of 1974 and that special preparation lasted through April 1975 when formal proposals were submitted. He testified that Phillingem advised that the employer would only discuss the preamble and the following three articles, mainly (1) recognition; (2) association and teacher rights and (3) negotiation procedures. 8/ He testified that at that session, Respondent would only propose language regarding the recognition article. During that meeting the employer submitted its "guidelines for negotiation" and previously thereto on April 23, Respondent advised that it would have prepared at its next session, a counter proposal. The Union's proposal consisted of some 123 pages containing approximately 33 articles. The next meeting was held on May 19, and the parties agreed to payroll deduction for the remaining school year. He testified that Moses, at that meeting, advised that he wanted the Union's negotiating team to "localize the agreement." He testified that the next three sessions mainly consisted of questions by Moses, who informed the Union's bargaining team that "when we start bargaining, we will get. responses." 9/ On cross-examination, Moses asked the witness a number of questions regarding the Union's necessity of affiliation, the understanding as to why two whereases were included in Hue Union's preamble and other questions regarding language contained in provisions of its (the Union's) proposal. Moses inquired of him what his definition of good faith bargaining was and how the Union derived the one 1000th figure as the cost for dues deduction payments. He testified that Moses indicated to him that most of the Union's proposals were "non-bargainable items." The Respondent counter-proposed with a one page proposal. The Employer's initial counterproposal, which was submitted on July, in essence contained provisions that all offers were package offers which had to be either accepted or rejected as a package; that the contract term be two years and that the salary level be that level that was paid to instructional personnel the last school year. The proposal also contained provisions that all negotiable benefits be maintained at the funded level as contained ill the last contract and for existing benefits only; that final and binding arbitration be added to the present concept of grievance as is now in use in the Escambia County Schools.. The counterproposal ended with a provision which stated that all other bargainable items proposed by the union and identified as bargainable by the board were rejected. 10/ Mrs. Barrineau testified that the board's final proposal which was mailed to the teachers contained provisions whereby lunch hours were discretionary with the principal; a no strike provision; dues deduction and mileage allowance which was less beneficial than that contained in the predecessor agreement. The counterproposal also contained more restrictive provisions regarding maternity leave, personal leave and a two year contract term. There was a provision regarding association and teacher rights, three paid holidays, professional leave and procedures for reviewing personnel files. There was a provision controlling posting, voluntary transfers, class size, teacher's schedules, $60.00 bonus and that in her opinion, the salary proposal was regressive. She testified that the Respondent attempted to withdraw certain items which had been tentatively agreed to by the parties. The Respondent advised that this proposal which was submitted to the union on or about September 26, could only be accepted or rejected "in toto." On July 3, Mrs. Barrineau asked the Respondent for a counter and that its failure to do so would result in the Union's filing an unfair labor practice charge with PERC. Respondent's chief negotiator indicated that management's rights superseded employee rights except as specifically restricted by law. She testified that the only items which he considered negotiable were those items which were existing items or items which were covered by Respondent's policy. She testified that the principle area of discussion at that session dealt with grievance procedures and Dr. Moses informed the Union's negotiating team that their proposals were "so far out of line that they would not be either accepted or entertained." She testified that while the Union was willing to discuss item by item in their proposals and various counterproposals, the Employer indicated that all proposals had to be either totally accepted or rejected. The Union pressed for an informal grievance procedure and a more expeditious manner to resolve such but this was not forthcoming through negotiations. She expressed the opinion the "in toto" position urged by the Respondent was stifling the bargaining process and in her opinion, an attempt was being made to create an impasse. Regarding maternity and sabbatical leave, the discussion surrounding those areas were more regressive and restrictive than the existing policy. 11/ She testified that the Union agreed to accept the Respondent's dormant position regarding insurance in order to enable it to put insurance bids to various carriers. The Employer took a "no give" stance on the preamble and refused to allow employees a "choice of forums to resolve grievances." The next session which was held on July 9 was, according to Mrs. Barrineau, a discussion which largely centered around grievance procedure and sabbatical leave and that in the Unions opinion, the grievance procedure advanced by Respondent was "too detailed." For a detailed discussion on the grievance procedure, see Charging Party's Exhibit 31, which is a counter dealing with grievance procedure. During the next discussion, the witness testified that she expressed concern about the absence of insurance, sabbatical leave and teacher's retirement provisions, and that this was a subject to which the Employer refused to discuss.. The only items that the Employer would discuss were sabbatical leave and insurance. During the July 9 meeting, the Employer agreed to withdraw its insurance proposal. At the next session on July 14, the Union submitted its counterproposal no. 5, which was a regression from its earlier proposal regarding unpaid leave and grievance procedures and all other proposals were identical to its earlier submission and previously adopted position. 12/ Another session was held the following day, i.e., July 15, and the employer adopted the position of making responses only via written proposals and during that session, the Union changed its dues deduction proposal and incorporated a hold harmless clause for the Employer. Thereafter, the Union changed its position on the grievance procedure and advanced an informal one which in her opinion, provided for a more expedited procedure of resolving grievances. During that period from May 20 through mid-July, the parties had only agreed to three items. The Employer adopted a "no give" position regarding sabbatical leave. During a negotiating session on July 17, Dr. Moses appeared at the session approximately one and one-half hours late. At that meeting he submitted a counter which in essence stated that all issues which were "bargainable" had been discussed. She testified that the employer refused to submit counters on promotions, overtime, transfers, calendars, affect of class sizes and all other items. The Employer remained adamant regarding its position that dues deductions were subject to a $.50 deduction per card per employee and that she expressed the opinion that all other deductions were not subject to a like charge and, therefore, the administration charge for dues deduction was punitive in nature. She testified that at the July 17 meeting, the Respondent submitted its counterproposals 9 and 10 and that there were no changes regarding bargainable versus nonbargainable items. The proposals contained regressive language and that employees had to specifically state the reasons for taking personal leave. There were other changes in military and professional leave which deviated from and were more restrictive than existing policies. She testified that the dues deduction pursuant to the $.50 per card charge amounted to approximately $12,450.00 for the Union. The Employer submitted a proposal whereby the instructional personnel would work an 8-hour day which had the effect of increasing the normal work day and the lunch period was reduced to 20 minutes. The proposal contained no compensation allotments for overtime work and the Employer took the position that salary supplements were not negotiable. The Employer refused to change its attitude with regard to physical examinations, mileage allowances and the collective bargaining contracts would be printed at the Union's expense. There was no movement from the initial salary proposals submitted on April 23. During the period from July 1 through July 23, Respondent was unprepared approximately seven times and was late approximately nine times for bargaining sessions. On July 23, the Respondent submitted its counter no. 11 which changed the contract terms from one year to two years and the recognition clause also contained the provision deleting "the board and the association and added the State of Florida." On dues deduction, the employer agreed to recede from its earlier position adopted in its counter no. 10 by an amount totaling $50.00, i.e., the amount previously stated from $12,450.00 to $12,400.00. The proposal also contained a provision that Respondent reserved the right to establish those deductions which it considered to be voluntary deductions and that said right also included the "establishment of a reasonable set deduction, if in the opinion of the board such cost is necessary." All other items were consistent with those contained in its earlier counterproposal. 13/ On July 23 the Union declared impasse which was 60 days prior to the Respondent's budget submission date. At the time of the impasse, the parties had not reached agreement on: the insurance proposal, grievance procedures, sick leave, illness in line of duty, personal leave, sabbatical leave, general leave of absence, military leave, professional leave, visitation rights, dues deduction, preamble, maternity leave, as well as others. 14/ The parties scheduled their first mediation session on August 13, and it was scheduled to begin at 4:30 p.m. At that session, the Respondent's team was late by approximately two hours. The testimony is that the dues deduction costs submitted to the mediator was for a lump sum payable by the Union of $12,400.00. At that session, the Employer took the position that the subject of discharges was a nonnegotiable item. At the next meeting, on or about August 26, the Respondent's chief negotiator was late approximately two hours. On November 10, the Union requested a further session and Moses wired a message that he would not be available until November 15. The witness remained at the negotiating meeting on November 15 for approximately one hour and no negotiating official of Respondent appeared. The Employer remained adamant on positions wherein there was disagreement only as to language but not in principle. The parties agreed to a marathon bargaining session beginning November 28, and the sessions continued through November 30, at which time an agreement was tentatively reached by the parties, subject to ratification by the bargaining unit members. 15/ The unit members voted against ratification of Charging Party's Exhibit 46 which is the agreement entered into by the negotiating team and the Respondent's team on that same date. Included therein, is a salary proposal which amounts to a reduction in the previous school year salary of approximately 3.6 percent, i.e., $8,320.00 per annum versus $8,266.00. The Respondent refused to accede to most proposals submitted by the Union based on its stated claim that most were already provided for by law and thus that there was no need to incorporate such in a collective bargaining agreement. A member of the Respondent's negotiating team allegedly made the statement that "the teachers had nothing, that the school board had everything, that the school board could do what it desired regarding salaries. Additionally, it considered as nonnegotiable such matters as: dismissal, layoffs, evaluation, tenure, discipline for annual contract teachers and the scheduling of planning periods." Floating teachers, assignment of summer school teachers, problems regarding absence without leave and class size were also nonbargainable. Respondant's negotiating team also took the position that the effects of such items were also nonnegotiable. The chief spokesperson, Mrs. Barrineau, testified that her duties consisted primarily of carrying out speaking engagements regarding collective bargaining rights, effectuating collective bargaining policy for the Escambia Education Association, the certified bargaining agent, to settle disagreements within the collective bargaining team, to formulate policy, to issue news releases, to make civic speeches, to attend EEA workshops and to formulate a collective bargaining budget. She testified that the proposals resulted from a joint effort of EEA's collective bargaining team. She became actively engaged in the formulation of proposals on or about March 1. She testified that she made approximately seven phone calls during the period June 12 through June 26, in an effort to schedule a session with Respondent. At the August 14 meeting, the Respondent presented the impasse proposals to the FMCS mediator. As of September 25, the parties reached the figure of approximately $1300.00 for the cost of deducting dues pursuant to checkoff authorizations. Mr. Phillingem was called and testified that the file to which he earlier testified to contain Chapter 447 and the pertinent enabling statutes and the Department of Education Rules and Regulations in addition to proposals submitted by EEA, the certified bargaining agent, "blurb" sheets which are distributed and various other Union news letters. He testified that the school board's legal counsel is, to the best of his knowledge, associated with Muller & Mintz, a Miami law firm. Wallace S. Odom, the comptroller, testified that he is responsible for maintaining all financial data with regard to the school's budget. He is charged with maintaining accurate records and during fiscal year from October 1, thru September 30, there was a county wide reduction in teacher aides by approximately 110. He testified that there was no increase in salaries based on the status of incoming revenues. He testified that there has been an increase in the millage paid for property tax in and around Escambia County and that such increase is up to, according to his testimony, a full 8 mills. Fred Haushalter, EEA's Executive Director, testified that he monitors correspondence which comes through his office. He testified that the allowance for dues deductions during the months of June, July and August was achieved through negotiations and that the parties stipulated as to the amount of the cost for such deductions. He testified that the stipulation was reached on or about May 20, 1975. Thereafter during the remaining months of the school year, the parties entered into a stipulation whereby the cost of administration and dues deduction were set at a cost somewhere in the nature of $325.00 for the remaining three months. While the basic issues here can be simply stated, they are not susceptible of a short and simple answer: Did the Respondent negotiate with the Union in bad faith and with the intent of avoiding reaching agreement or conditioning agreement with the Union's acceptance of terms and conditions which the Respondent knew or should have known are unacceptable to any self respecting Union? The governing principles need not be set forth in exhaustive detail. Section 447, F.S., (the Act) defines collective bargaining and imposes upon the parties the duty to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment or the negotiation of and agreement, or any question arising thereunder... but such obligation does not compel either party to agree to a proposal or require the making of a concession. " The Public Employees Relations Act which was largely patterned after the National Labor Relations Act, 29 USC 151 et seq, sets forth the yard stick which is contained in Section 8(d) of the National Labor Relations Act and provides that the measurement of "good faith" is not rigid but, necessarily is an elastic concept having meaning only in its application to the particular facts of a particular case. See for example N.L.R.B. v. American National Insurance Company, 343 U.S. 395, 410 (1952). The U.S. Court of Appeals for the second circuit stated in N.L.R.B. v. National Shoes, Inc., and National Syracuse Corporation, 208F 2d. 688, 691-692 (1953), the problem is essentially to determine from the record the intention of the state of mind of [the employer] in the matter of [his] negotiations with the Union. In this proceeding, as in many others, such a determination is a question of fact to be determined from the whole record. See also N.L.R.B. v. Reed and Prince Manufacturing Company, 205F. 2d.131, 134-135 (C.A. 1, 1953), cert. denied 346 U.S. 887 (1954). The National Labor Relations Board has repeatedly held that it is without authority to either directly or indirectly compel concessions or otherwise set in judgement upon substantive terms of a collective bargaining agreement. A necessary corollary to this principal is that just as the Act contains no authority to force an agreement when the parties have reached an impasse (N.L.R.B. v. The United Clay Mines Corporation, 219F. 2d 120, 126 (C.A. 6, 1955), so also refusal to bargain cannot he equated with refusal to recede from an announced position advanced and maintained in good faith. Division 1142, Amalgamated Association of Street Electric Railway and Motorcoach Employees of America, AFL-CIO (Continental Bus System v. N.L.R.B., 294F. 2d 264, 266 (C.A.D.C., 1961). Applying these principles to the facts here, it becomes apparent that based on the small movement and the repeated standoffs by Respondent, I am constrained to conclude that the Respondent here has failed to fulfill its obligation to bargain in good faith with the Union. Turning to the pertinent facts in this case, up to and including the point of "impasse", the Respondent refused to recede from its initial stand on inter alia, checkoff, seniority, grievance procedure, all types leave, assignment scheduling, shorter lunch periods, reduction in pay and longer work days. Based on this position, one would readily infer that the Respondent approached the table with a preconceived determination never to reach agreement on these issues and that it maintained this position during negotiations without doing anymore than listen to Union argument on those points. Thus, in effect it engaged in surface bargaining on those as well as other issues without any attempt to explore argument thereon with a sincere desire to reach agreement. The Respondent's chief negotiator approached the table with a cleverly concealed scheme of displaying a real and sincere attitude of negotiating which was carried on with sophistication and finesse and the mere making of concessions on some items was the very means by which he concealed a purposeful strategy to make bargaining futile or fail. Using this approach, the Respondent opened negotiations with an extremely high cost for the administration of dues deduction and then failed to recede from this position until the waining moments of the negotiating sessions and after the parties had gone through the lengthly process of calling in mediators which were costly to both parties. There was no meaningful change on its consideration of position on the mandatory subject of checkoff as provided in Section 447.303, Florida Statutes. Throughout the sessions, the Union brought out and repeated all its main arguments regarding checkoff, salary levels, scheduling assignments, grievance procedures, contract terms, health insurance coverage as well as other items which the record is replete with documentary evidence. The Respondent, according to the testimony, stood fast on various articles which it deemed to be nonbargainable throughout the negotiation and as the sessions progressed, its position hardened. These are mandatory bargaining subjects and the Respondent's failure to enter negotiations with an effort to reach agreement constitutes bad faith bargaining in violation of 447.501(c), Florida Statutes. One example of this unlawful conduct can be examined by consideration of the fact that during the previous school year, the Respondent agreed to deduct dues on a monthly basis and the cost of such deduction amounted to approximately $325.00 for a three month period whereas when it entered the negotiation table it started out with the "outrageous" figure of approximately $13,000.00 for the same service that it had earlier provided for a total cost of $1300.00 if projected over a one year period. The same can be said for the Respondent's adamant refusal throughout the negotiations to accede to minor language changes in the preamble and other matters which in its opinion, were matters already covered by other laws and therefore there was no need to incorporate such in a collective bargaining agreement. While not suggesting that the Act requires concession by either side during bargaining nor the surrender of convictions or alterations of philosophies provided such convictions or philosophies are not made operative in such manner as to foreclose bone fide consideration of bargainable issues, the repeated refusal to consider or counter when proposed with items which amounts to nothing more than language changes, such a position militates a finding that the employer approaches the bargaining table with the intent of reaching an agreement and/or to engage in good faith bargaining. While parties oft times approach the bargaining table and jockey for positions, there comes a time when there must be a sincere desire to reach agreement. Further support in this position can be found in the fact that the Union on numerous occasions made futile attempts to reach the Respondent's Chief negotiator. During one period during the negotiating sessions, the Union's chief spokesman testified that she made more than ten phone calls during a twelve day period and that at no time were her calls returned by the Respondent and/or its agents. This in the opinion of the undersigned evinces a practice on the part of the Respondent to engage in dilatory and evasive tactics designed to make the bargaining process a sham and fruitless process. For example, anti-discrimination clauses are customarily included in contracts whereas there are other specific laws which specifically provide for and cover such proscribed activity. The fact that a proposal is made to include such in an agreement does not detract from or otherwise modify from other existing laws covering the same procedure. Further support for the conclusion reached by the undersigned can he found in the fact that the Respondent's chief negotiator entered the negotiating sessions with the idea that all proposals submitted by the Respondent would be package proposals and that the Union could not accept part of a counter proposal put by the Respondent without completely accepting or rejecting the entire proposal. This is not to say that the parties cannot enter into negotiations and negotiate on an item by item basis but the adoption of an "in toto", or take it or leave it" policy is further indication of bad faith bargaining. This is of much significance here since Respondent refused to agree to insignificant or traditional items contained in collective agreements. See e.g., Big Three Industries, 201 N.L.R.B. No. 105. Another indicia of the negotiating process which is indicative of bad faith bargaining is the fact that after the Union had been certified for approximately 6 months, the Respondent without prior consultation with the Union, unilaterally indicated that dues deductions could only be effected on a lump sum basis which ultimately had the effect of forcing numerous employees to cancel their dues deduction authorizations. This statement is based on the credited testimony of several witnesses including Mrs. Barrineau and Mr. Price. Although the Respondent, during the course of the hearing, testified that the dues deductions were canceled or that attempts were made to get employees to execute new authorization forms, there is nothing in Florida Statutes which places such a burden on the Respondent. A careful reading of Section 447.303, Florida Statutes, indicate that such authorizations are revokable at the employee's will upon 30 days written notice to both the employer and employee organization. Based on the foregoing, I therefore conclude and find that the Respondent's negotiating team entered the table with no intent to fulfill their duty to bargain in good faith and that its actions in forcing employees to execute forms which call for the single deduction of Union dues was a deliberate attempt on its part to force mass withdrawals from the Union in an effort to undermine it.
