Findings Of Fact JURISDICTION The Respondent, a Public Employer, has its principal place of business in the City of Winter Haven, Polk County, Florida, where it is engaged in the business of providing municipal services. Respondent is created directly by the Florida Constitution, a legislative body, and is administered by individuals who are responsible to public officials and/or the general electorate. On the foregoing facts I find that Respondent is a Public Employer within the meaning of Section 447.203(2), hereinafter referred to as the Act. THE LABOR ORGANIZATION INVOLVED The Charging Party is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. THE ALLEGED UNFAIR LABOR PRACTICES Introduction On or about May 28, 1975, the Commission issued a written certification certifying the charging party as the exclusive bargaining representative for firemen and fire engineer drivers employed by the City of Winter Haven. On or about January 27, 1975* the parties commenced collective bargaining negotiations. On or about May 28, the parties reached impasse. On or about July 31 and August 14, the parties met with the Special Master, and on September 18, the employer approved the Special Master's report. On September 19, the City Manager, Mr. W. D. Fultz, sent a letter to the Chairman of the Commission, Curtis L. Mack, and to the Association, stating that the Respondent had accepted the Special Master's Report without any changes and that the Respondent was enclosing the contractual provisions to the union to be added to those provisions to which the parties had tentatively agreed. Additionally, the Respondent, upon ratification by the bargaining unit, agreed to execute and adopt the agreements with approval from the City Commission. On or about September 25, the City Manager, prior to formal action by the City Commission, notified Mr. Mack and the Association that the Respondent was revoking its prior approval of the agreement submitted to the Association. The following day, September 25, the Association notified Respondent that the bargaining unit employees had ratified the contractual agreement that was sent by Respondent to the Association for ratification. On October 2, the Association attempted to sign the ratified agreement and the Respondent refused to do so. During the course of the negotiations, the Respondent was represented in collective negotiations by its agent, Paul Pothin and L. D. Woodard who, according to the pleadings, had the authority to enter into and negotiate on behalf of Respondent. The transmittal letter forwarded to PERC's Chairman stated, in pertinent part, that: "Therefore, I have this day furnished enclosed 'Contractual Provisions' to the Union to be added to those provisions to which the parties have tentatively agreed. Subsequent to ratifi- cation by local membership, the City agrees to enter into and execute the agreement in whole. Absent such ratification, it is our intention to implement all economic improvements guaran- teed by the agreement as a sign of good faith to our employees." The agreement transmitted from the City to the Employee Organization contained articles concerning both merit increases and salary increases. According to the evidence, the City's chief negotiator, Paul Pothin, was in agreement with the Special Master's Report until the morning of September 25. He apparently became unhappy with the report after the City became informed that a survey conducted by or on behalf of the Special Master revealed that the Respondent's firemen were making approximately 4.7 percent less than the Cities in the local operating area. With this information, Pothin contacted the City Manager who, in turn, sent a letter to the Employee Organization seeking to revoke his prior approval by letter dated September 25, 1975. The Employee Organization, on the evening of September 25, ratified the previously agreed to articles and notified the City of that action on the following day, September 26. On October 2, Messrs, Motes and Clifford Lewis, agents of the Charging Party, visited the Respondent's City Managers in an effort to sign the agreement to no avail. When the City Manager refused to sign the contract as submitted, the Charging Party offered to submit the question in issue to the grievance procedure under the contract, which the City rejected, and state that they did not feel compelled to sign the agreement. It is the Charging Party and the General Counsel's position that under Florida Law, the City Manager cannot unilaterally revoke a prior commission action. Citing State ex rel. McIver v. Swank, 12 So.2d 605, Ramsey v. City of Kissimmee, 19 So.2d 474, Brown v. City of St. Petersburg, 53 So.141. The Respondent, on the other hand, takes the position that it revoked this offer prior to acceptance by the union and therefore it cannot be bound by an offer that contains an error when the other party is notified of such error prior to acceptance. Accordingly, Respondent takes the position that by failing to execute the document which did not represent its intent, such act cannot be evidence of an unfair labor practice within the meaning of Florida Statutes 447.501. Therefore the Respondent urges that the Complaint be dismissed. ANALYSIS, DISCUSSION AND CONCLUSION Section 447.309, F.S. states in essence that any collective bargaining agreement reached by the negotiators shall be reduced to writing and such an agreement shall be signed by the chief executive officer and bargaining agent. Additionally, Section 447.501(1)(c) states that an employer commits an unfair labor practice by refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit. These are the guiding statutes which control resolution of the issue posed in this case. The facts here show that when the union received the certification, the parties commenced negotiations for a collective bargaining agreement and met on approximately six different negotiating meetings in an attempt to reach a full collective bargaining agreement. The parties reached impasse on a number of items and being unable to resolve the deadlock on the impasse items, the parties called in a Special Master, Dr. James J. Sherman, Professor of Industrial Relations, University of South Florida. (The Special Master's Report was received into evidence and made a part hereof by reference.) Contained in the Special Master's Report was a provision dealing with wages wherein the Special Master arrived at a figure based on a study conducted of all fire departments in the Winter Haven area. The salary contained in his recommendation was that employees covered by the certified appropriate unit shall be paid a rate of no less than $8,089 per year. He further recommended that the City agree to pay the employees covered by the agreement "the average salary increase" granted for cities in the "local operating area" effective October 1, 1975. Pursuant to a special commission meeting held on September 18, 1975, and approved by the City Commission of the City of Winter Haven, Florida, in regular session on October 1, 1975, the City Commission met and Commissioner George L. Harris moved for adoption of the findings, opinions, and awards of the Special Master. This act was seconded by Commissioner George L. Harwick. The Commissioners unilaterally agreed to adopt the economic benefits contained in Special Master's award provided the union did not ratify such by October 1 such that the City could implement them by the same date. Mr. Pothin, the City's Labor Consultant, presented the findings, opinions, and awards and recommended adoption of such by the City. These recommendations were relayed to the union by letter and a copy sent to Curtis L. Mack, PERC's Chairman, and the union members voted to ratify the Special Master's Report as prepared by Mr. Pothin which contained the awards and findings of the Special Master. The ratification vote occurred on September 25. Earlier that same day, Pothin and the City Manager sent a letter to the union revoking the prior letter which indicated the City had formally approved the findings of the Special Master as embodied by the transmittal letter and contract to the union. The union advised the City of such ratifzzz ication on September 26 and on October 2, Mr. Motes, along with Clifford Lewis, visited City Hall in an attempt to obtain the City Manager's signature on the agreement. The City refused and the union attempted to invoke the grievance procedure contained in the contract whereupon the Respondent rejected stating that they did not feel compelled to sign the agreement and further, that the grievance machinery was not operative inasmuch as there was no contract containing such grievance arbitration machinery. It is clear that parties are required to bargain in good faith for employees contained in a certified appropriate unit with the certified bargaining agent and attempt to embody such agreement in a final form and reduce it to writing when such an agreement is entered into. Section 447.501(c) F.S. The evidence here reveals that the City initially agreed to adopt the Special Master's findings and later attempted to renege on this action once it noted that the current wages for the unit employees was approximately 4.7 percent lower than those salaries recommended by the Special Master. However, in doing so, the withdrawal of the acceptance did not meet the authorization required in a commission manager form of government. Thus there was no proof that the City Manager alone had the authority to rescind the prior action entered into by the City Commissioners as far as this record reveals. It is clear that the recommendation that the Special Master's award be adopted took place at an open meeting of the commissioners whereupon they formally agreed to adopt the Special Master's findings. There was no further evidence indicating that the City Commissioners formally rescinded this action by a special meeting or any other formal action. Nor was there any other showing of any form of ratification of the acts of the City Manager wherein he attempted to repudiate the agreement entered into by the full commission at the special commission meeting held on September 18 and formally adopted by a regular meeting held October 1, 1975. Based on the above, it is concluded that the action of the City Manager on September 18 was not authorized by the full city commission and therefore the actions taken by him were incomplete and unauthorized. See for example, Brown v. City of St. Petersburg, 153 So. 141; Ramsey v. City of Kissimmee, 190 So. 474. Accordingly the city's failure to implement the agreement submitted to the union on September 9, 1975, resulted in a refusal to bargain within the meaning of Section 447.501(a)(c). Based on the above I find that the actions of the respondent set forth above amounted to bad faith bargaining by attempting to repudiate its previously agreed to article concerning wages. Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following:
Recommendation I therefore recommend that the Respondent be required to implement the provisions of the agreement to which it previously agreed to concerning wages and all other terms contained therein. DONE and ORDERED this 6th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
The Issue The issues are whether Respondent should reject Petitioner's bid as nonresponsive and award the bid to two other bidders.
Findings Of Fact Petitioner is a closely held Florida corporation licensed in the state as a mechanical contractor. Mr. John Smith is vice president and the sole shareholder of Petitioner. Respondent is a local school district in the state. Respondent regularly solicits bids for goods and services Respondent needs to construct, renovate, manage, and operate the public schools in Sarasota County, Florida (the District). On April 13, 2004, Respondent issued an invitation to bid identified in the record as No. 4134 (the ITB). The ITB solicited bids to provide HVAC and refrigeration maintenance and installation services to the District. On April 27, 2004, Respondent conducted a mandatory pre- bid meeting with vendors interested in bidding. Two of Petitioner's employees attended the meeting. Based upon discussions with attendees at the pre-bid meeting, Respondent issued an addendum to the ITB on April 29, 2004 (the Addendum), and required a signed copy of the Addendum to be included with each bid. Petitioner and others at the meeting subsequently submitted separate bids. Petitioner, along with six other prospective vendors, submitted a bid in response to the ITB. Petitioner did not include a signed Addendum in its bid. On May 25, 2004, Respondent posted its intent to award the bid to a primary vendor and to a secondary vendor, neither of which was Petitioner. Prior to the posting of the intent to award the bid, Respondent provided actual notice to Petitioner that Respondent deemed Petitioner's bid to be non-responsive for failure to include a signed Addendum. Petitioner filed a timely protest pursuant to Subsection 120.57(3)(b), Florida Statutes (2003). Respondent halted the contract award process until this protest is resolved as required in Subsection 120.57(3)(c), Florida Statutes (2003). Petitioner's position is that it in fact included a signed Addendum in its response to the ITB, or, alternatively, that the signed Addendum was not required to be included with the bid because either Respondent did not make Petitioner aware of the requirement; or the requirement for an signed Addendum was not material. Petitioner did not include a signed Addendum with its bid. Petitioner did not submit a copy of a signed Addendum for admission into evidence. Petitioner's vice-president personally compiled Petitioner's bid the night before Petitioner submitted the bid, sealed the bid, and left the sealed bid for a designated employee to deliver the bid to Respondent the following day. No one assisted the vice-president in sealing the bid. The designated employee delivered Petitioner's sealed bid to Respondent the next day. The bid remained sealed until Respondent opened the bid, along with all the other bids, at the bid opening. Respondent opened the sealed bids in accordance with Respondent's customary procedure for bid openings. All of the bidders attended the bid opening in the same room. One of Respondent's employees opened each sealed bid in front of the bidders and verbally relayed pertinent information from each bid to a second employee a few feet away who entered the information into an Excel spreadsheet on a computer. The information included the name, address, and contact information for each bidder; bid price information; and whether the bid included a signed Addendum. Respondent's two employees at the bid opening specifically recalled the announcement that Petitioner's bid did not include a signed Addendum. Members of the audience at the bid opening corroborated the testimony of Respondent's two employees. Their testimony was credible and persuasive. After Respondent opened the bids, the employee who had recorded the information in the spreadsheet reviewed each bid to verify the accuracy of the information in the spreadsheet. The employee maintained continuous possession of the bids in the room where she entered the information into the spreadsheet. A third employee for Respondent, not present at the bid opening, subsequently reviewed Petitioner's response and did not find a signed Addendum. The information in the copies of the spreadsheet in evidence shows that Petitioner's bid did not include a signed Addendum. Both the ITB and the Addendum state the requirement for each bidder to include a signed Addendum with the bid. The ITB states, in relevant part: . . . prior to submitting the bid, it shall be the sole responsibility of each bidder to contact the Purchasing Office at (941) 486- 2183 to determine if addenda were issued and, if so, to obtain such addenda for attachment to the bid. (emphasis in original). Similarly, the Addendum, states in relevant part: "PLEASE EXECUTE THIS FORM AND ENCLOSE IN THE SEALED ENVELOPE WITH YOUR BID RESPONSE." (emphasis in original). The requirement for a signed Addendum is a material requirement for a bid to be responsive. The information in the Addendum has a direct affect on the prices to be charged to Respondent by a vendor in terms of the hourly rates for services and the permissible costs that a bidder may pass through to Respondent. The information ensured the fairness of the ITB and assured the bids Respondent received were based on similar assumptions and methods of computation. The requirement for a signed Addendum assured that each bidder had read the Addendum. Respondent's proposed award of the bid to the two successful bidders is reasonable. The two bids are the two lowest priced bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent issue a final order dismissing the protest. DONE AND ENTERED this 27th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2004. COPIES FURNISHED: John R. Smith Hill York Service Corporation 2427 Porter Lake Drive, Suite 101 Sarasota, Florida 34240 Arthur S. Hardy, Esquire Matthews, Eastmoore, Hardy, Crauwels & Garcia, P.A. Post Office Box 49377 Sarasota, Florida 34230-6377 Dr. Gary W. Norris, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3304 Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
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.
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 Whether Respondent, Douglas Porter, should be terminated for his third absence without leave in violation of the Collective Bargaining Agreement between Petitioner, Seminole County School Board, and the non-instructional personnel of Seminole County.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing in this matter and the joint stipulation submitted April 24, 2007, the following Findings of Facts are made: Respondent, Douglas Porter, is, and has been, employed by the School Board of Seminole County since July 13, 1993. Paul Hagerty and William Vogel have been Superintendents of Public Schools for the School District of Seminole County, Florida, for all times material to the occurrences relevant to this case. Pursuant to Section 4, Article IX, Florida Constitution, and Sections 1001.30, 1001.31, 1001.32, 1001.33, 1001.41, and 1001.42, Florida Statutes (2006), the School Board of Seminole County, Florida, is the governing board of the School District of Seminole County, Florida. The relationship of the parties is controlled by Florida Statutes, the Collective Bargaining Agreement, and School Board policies. Respondent is an employee of Petitioner's Grounds Maintenance Department, 100 Division ("maintenance department"). He began his employment in that division at the entry level position of Grounds Laborer I and worked his way up to Grounds Laborer II, prior to becoming a mechanic crew leader. As a mechanic crew leader, Respondent supervised three employees on his crew and interacted with principals and assistant principals to determine the landscaping needs of various schools. Respondent held the position of mechanic crew leader for approximately two years. Respondent has been employed by Petitioner for more than three years and is a "regular" employee and subject to the Collective Bargaining Agreement, copies of which he receives annually. Article VII, Section 15, of the Collective Bargaining Agreement, provides, in pertinent part: Employees shall report absences and the reason for such absences prior to the start of their duty day in accordance with practices established at each cost center. An employee who has been determined to have been AWOL shall be subject to the following progressive discipline procedures: 1st Offense - Written reprimand and one day suspension without pay. 2nd Offense - Five day suspension without pay. 3rd Offense - Recommended for termination. Each day that an employee is AWOL shall be considered a separate offense. However, any documentation of offenses in this section shall be maintained in the employee's personnel file. Article VII, Section 15, has consistently been construed to apply to an employee's absence from his or her assigned duties for any portion of the day, as well as the entire day. An employee who is absent from his or her assigned work duties without the permission of the employee's supervisor is considered to be absent without leave. The Collective Bargaining Agreement requires that an employee call in before the start of the work day if he or she is going to be absent; historically, maintenance department employees are given a 15-minute grace period after the start of the work day to call in. Although not reduced to a written directive, this practice is well-known within the maintenance department. An employee in the maintenance department who calls in sick, is reported to the payroll clerk who checks the employee's timesheet; if the employee has time on the books, he or she is approved for pay for the sick time. If the employee does not have time on the books, he or she is charged with a sick day with no pay. An employee who fails to call in, or calls in late, is considered absent without leave if he or she does not physically report for work that day or for the portion of the day missed due to tardiness. If the employee reports for work, he or she is subject to discipline, but is paid for the hours worked. If the employee calls in during the 15-minute grace period and is late, he or she is not subject to discipline, but is paid only for the time worked. Respondent had used 13 days of annual leave, 16 days of sick and personal leave, and 27 days of unpaid leave in the 2000 school year. This prompted Respondent's supervisor to indicate that his attendance needed improvement in Respondent's annual evaluation. As reflected in each of Respondent's annual assessments during his employment, Respondent's absenteeism created a hardship on his department and his attendance needed improvement. Normally, an employee is not required to provide proof of illness. In instances where an employee has excessive sick days, validation of illness is required. Concern with Respondent's excessive sick days prompted his supervisor to require, by letter dated October 1, 2001, medical certification of future illness that required missing work. By October 1, 2001, for the 2001 school year, which began on July 1, 2001, Respondent had used six days of vacation, eight days of paid leave, and four and a-half days of leave without pay. This "abuse of sick leave" resulted in a letter of reprimand dated October 1, 2001, which was clearly intended to warn Respondent to improve his attendance and required validation of illness as referenced in the preceding paragraph. Respondent was absent on September 1, 2002. He did not provide a medical validation of the illness causing the absence and, as a result, the absence was treated as an absence without leave. On September 18, 2002, Respondent received a letter of reprimand and a one-day suspension without pay due to his failure to provide medical verification for this unpaid leave day. This invoked the first step of progressive discipline as contained in the Collective Bargaining Agreement. On March 20, 2005, Respondent called in during the late evening and left a message on his supervisor's voicemail stating that he would not be at work the following day. The message was vulgar and unacceptable. Respondent did not report to work on March 21, 2005, and did not produce medical verification for his absence. On March 28, 2005, his supervisor recommended that he be suspended from work without pay for this absence without leave, his second offense in the progressive discipline system. On April 7, 2005, Respondent received a letter from the Superintendent notifying him that he would be following the supervisor's disciplinary recommendation for Respondent's absence without leave. The Superintendent's letter clearly references Respondent's failure to give appropriate prior notice of absences "in accordance with practices established at each cost center," and warns that future failure to comply "with procedures established at the Facilities Center to properly report and receive approval for future absences" would result in discipline in accordance with the Collective Bargaining Agreement. On September 7, 2006, Respondent voluntarily entered South Seminole hospital, a psychiatric facility. He was discharged on or about September 25, 2006. Respondent's condition required that he again be hospitalized on October 31, 2006, for four days. Respondent was diagnosed as suffering from bipolar disorder. During his hospitalizations, Respondent was administered various medications to treat his condition. Following release from his second hospitalization, Respondent's prescriptions were changed due to adverse side effects he was experiencing. In addition to being diagnosed with bipolar disorder, Respondent also voluntarily sought treatment for substance abuse at the Grove Counseling Center through the outpatient drug/substance abuse program. Respondent returned to work in November 2006, but was still suffering from problems related to his medication. He was late on November 8, 2006, and absent on November 9, 2006. Respondent had a meeting with his supervisor on November 10, 2006; it was the supervisor's intention to recommend Respondent for termination for the tardiness of November 8, 2006, and absence of November 9, 2006. On November 10, 2006, Respondent advised his supervisor that he had been diagnosed with bipolar disorder in September 2006 and that he was having problems with his medication. As a result of this conversation, instead of being recommended for termination, Respondent was given time off to adjust his medications, and it was agreed that Respondent would return to work on January 2, 2007. On January 9, 2007, approximately a week after returning to work, Respondent called in at approximately 7:10 a.m., his work day begins at 6:30 a.m., to advise that he had overslept and would be late to work. Respondent arrived at work at 7:28 a.m., 58 minutes after the start of his work day. As a result of this tardiness, Respondent's supervisor recommended suspension and termination to the Superintendent for a third offense of being absent without leave.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent, Doug Porter, guilty of the allegations stated in the Petition for Termination and that his employment be terminated. DONE AND ENTERED this 31st day of August, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2007. COPIES FURNISHED: Jeanine Blomberg, Interim Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Bill Vogel, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Pamela Hubbell Cazares, Esquire Chamblee, Johnson & Haynes, P.A. 510 Vonderburg Drive, Suite 200 Brandon, Florida 33511
The Issue Whether Petitioner has settled this matter and the proceeding should therefore be dismissed.
Findings Of Fact Both parties to the action voluntarily submitted the case to mediation before Jonathan Kroner, a Florida Supreme Court Mediator certified pursuant to Rule 1.760 of the Florida Rules of Civil Procedure. The mediation began around 9:00 a.m. on December 18, 1991, at the office of the Petitioner's former attorney, Mr. Rick Kolodinsky. Both parties and their counsel were present at the mediation. Mr. Kolodinsky's paralegal was also present, as well as Ms. Weaver's daughter. Both parties received an explanation of the purpose of the mediation from the mediator and then gave a brief synopsis of their case. The parties were then placed in separate rooms and the mediator shuttled back and forth between the two rooms reporting and discussing the relative merits and weaknesses of each party's offer as it was made. The parties remained separated throughout the mediation except for a mutual viewing of a video tape which demonstrated that Ms. Weaver was not being completely honest about the extent of the injury to her arm. Additionally, the parties came together at the end of the mediation after settlement had been reached in order to sign the settlement agreement and work out some minor details. The mediation lasted until approximately 5:00 p.m. The first offer of settlement was made by Ms. Weaver and her attorney. The first offer was over $100,000.00. Thereafter, a series of offers and counteroffers were made throughout the day. There is no doubt that each offer made by Ms. Weaver was made with her consent. Eventually, one of the parties offered $35,000.00 dollars. Ms. Weaver agreed to the figure. There was no credible evidence that either the mediator, Southern Bell, Mr. Kolodinsky or his paralegal unduly influenced or coerced Ms. Weaver into agreeing to the $35,000.00 figure during the time of the offer and counteroffer phase of the mediation. After the figure of $35,000.00 was accepted by both parties, the mediator called all of the people present at the mediation into the same room so that the settlement could be reduced to writing utilizing a standard form settlement agreement. The form settlement agreement contained the style of the DOAH case as well as the DOAH case number. The agreement stated in relevant part: Defendant agrees to pay to Plaintiff as full and complete settlement of all matters arising in this cause of action the sum of $35,000. Plaintiff agrees to execute any Release form generally required to be executed in settlements of disputes of this nature. Each party shall bear their respective attorney fees and costs. The figure of $35,000.00 was handwritten in the blank provided in the form. Following the $35,000.00 figure the words "and see attached" were added. The attachment being referred to in the agreement consisted of a legal size paper containing three additional handwritten settlement terms. Page two of the Settlement Agreement states: Attachment to Weaver She will not reapply to S. Bell for employment. S. Bell & K. Weaver will not disclose the terms of this settlement to anyone including Social Security except as required by court order. This is a release/settlement of all claims arising out of any issue involved in case #89-1661 of any handicap/sex or other discrimination or tort claim of Weaver v. S. Bell or any S. Bell employee(s). The attachment was prepared by Mr. Kolodinsky while all parties were present in the same room. Some of the terms were added at the request of Southern Bell and some were added at the request of Ms. Weaver. Prior to signing either page of the settlement agreement, Ms. Weaver's daughter tried to get Ms. Weaver to leave the negotiations and not finalize the agreement being prepared. Ms. Weaver declined to leave and there is no doubt that she signed both pages of the two-page Settlement Agreement and agreed to settle this case. As with the other phases of the mediation, there was no credible evidence that either Southern Bell, the mediator, Mr. Kolodinsky or his paralegal unduly influenced or coerced Ms. Weaver into signing the settlement agreement or settling this case. After all the parties had signed the settlement agreement, Ms. Weaver left Mr. Kolodinsky's office. She indicated to her daughter that she regretted settling the case. Clearly, Ms. Weaver was aware and understood that she had settled her case. On December 20, 1991, two days after the mediation, Ms. Weaver wrote Mr. Kolodinsky, her attorney, and explained to him that she wanted to "repudiate" the agreement because she claimed that she was under "duress", thus providing at her own initiative a rationale for such repudiation. Ms. Weaver's letter stated: I signed those papers under pressure and duress and did not know what I was doing. I want to repudiate the agreement. I will not accept the agreement. One week later, on December 27, 1992, Ms. Weaver continued to demonstrate that she possessed intelligence capacity and, in particular, knowledge of the legal system when she wrote another letter to Mr. Kolodinsky threatening him with legal action: Please let Southern Bell know my intention immediately otherwise I will have no choice but to file a grievance with the Florida Bar Association. On January 6, 1992, Petitioner's attorney, Mr. Kolodinsky, informed the Respondent that the Petitioner had repudiated the Settlement Agreement and that a conflict existed between Petitioner and her attorney. In this case, Ms. Weaver clearly possessed the intelligence and mental capacity to settle her case. Over the years, prior to settlement, Ms. Weaver had hired attorney Edward Hurtz to represent her in a workers' compensation case against Southern Bell. Additionally, Ms. Weaver had represented herself at a fact finding proceeding in 1987 and, in 1988, she hired attorney Cristina Favis to represent her in this FCHR action. Moreover, in 1990, Ms. Weaver hired another attorney, Mr. Briggs, to file a petition for divorce against her husband. In that proceeding she signed an affidavit affirming that the divorce petition was true, and that Mr. Briggs was still representing. Ms. Weaver also testified that in January 1990, she signed a financial affidavit for her divorce and on September 4, 1991, she signed a settlement agreement for her divorce. Furthermore, in the Fall of 1990, Ms. Weaver instigated a lawsuit against William Brittain. The lawsuit involved an automobile accident in Volusia County. In order to pursue the lawsuit, Ms. Weaver hired another attorney, Paul Bernadini, to represent her. Finally, in April, 1991, the Petitioner hired attorney Michael B. Wingo to represent her in a workers' compensation matter. Indeed, as indicated in the pleadings, Ms. Weaver again demonstrated her capacity by employing her current attorney and by signing the Amended Memorandum on February 18, 1992. Such actions are simply inconsistent with the Petitioner's claim that she lacked capacity and did not knowingly sign or settle her case. In fact, the decisions made by Ms. Weaver before the mediation, on the day of the mediation, and after the mediation, are not the type of decisions and reasoning made by a person who is lacking in capacity, or is not sui juris. Moreover, Ms. Weaver clearly possessed sufficient mental capacity and intelligence particularly regarding legal issues. Unlike a person who is subject to undue influence, her mind had not deteriorated to the point where she was completely dependent on Mr. Kolodinsky or anybody else. Although the Petitioner's attorney claimed during the opening statement that Ms. Weaver was taking "psychotropic medications" on the day of the mediation, there was no evidence presented at the hearing that substantiated this claim. Indeed, the Petitioner failed to present at the hearing a scintilla of medical evidence supporting her claim that she lacked capacity. Thus, there was no evidence presented at the hearing showing that Ms. Weaver's mind was weak because of medication or that Mr. Kolodinsky knew she was on medication or even "under extreme duress" and used this knowledge to wrongfully coerce Ms. Weaver to sign the Settlement Agreement. Even Ms. Weaver's own testimony demonstrated that she is not the type of person who is easily subjected to the influences of others including her various attorneys. Ms. Weaver testified that she makes the major decisions in her life. These decisions included hiring numerous attorneys and obtaining a divorce from her husband. The fact that she acknowledged that she "[came] to a decision" is contrary to her allegation that Mr. Kolodinsky used duress to force her to sign against her will. Thus, it is clear, from Ms. Weaver's letter and her conversation with Mr. Kolodinsky, that she knew she was making a "decision" and acted intelligently, understandingly, and voluntarily. At the hearing, Ms. Weaver's reason for why she signed the Settlement Agreement was that at some point prior to time she decided to settle, Mr. Kolodinsky silently "mouthed" the words: "You will take it, or I will leave you." The reason given at the hearing was different than the reason given for repudiating the Settlement Agreement contained in Ms. Weaver's earlier letter. According to Mr. Kolodinsky, Ms. Weaver had a past reputation for authorizing settlement offers one day and repudiating the offers the next day. Mr. Kolodinsky's explanation for Ms. Weaver's action of signing the Settlement Agreement on December 18, 1991, and repudiating the agreement shortly thereafter is supported by the evidence and is the most believable reason for her actions. Such a motivation of regret or remorse by Ms. Weaver, however, is not a motivation caused by undue influence. Nor is it a reason for setting aside a settlement agreement. Furthermore, evidence that Ms. Weaver did not protest when signing the Settlement Agreement strongly supports the position that Ms. Weaver signed the agreement of her own volition and free will. It is clear that at the time Ms. Weaver signed the Settlement Agreement that she made no indication, verbal or non-verbal, that she was forced, coerced, "browbeaten" or under undue influence by Mr. Kolodinsky or anyone else. All the witnesses that attended the mediation testified that Ms. Weaver signed the Settlement Agreement without protest. Most persuasive was the testimony of the mediator, Mr. Jonathan Kroner, who testified that Ms. Weaver verbally agreed to Southern Bell's offer: Q [Mr. Keener] Did Ms. Weaver agree to that offer or demand? A [Mr. Kroner] Yes, she did. Q Did she do that verbally or nonverbally? A Verbally. Q What did she say? A We discussed it for a while, and we were back and forth and back and forth. We discussed it and she said yes. I don't recall her very exact words to say what it was, but it was a clear ascent. I do a lot of mediations where, either because of a language difficulty or capacity problem or something, it's important to be clear. I don't like mistakes happening. The mediator also testified that he saw Ms. Weaver execute the Settlement Agreement and that he had no reason to believe that she was coerced to sign the agreement: Q [Mr. Keener] Did you see her execute the agreement? A [Mr. Kroner] I am just trying to picture what she was wearing and everything that day. Yes, I did because I remember where we were sitting at the table and everything. Q Was she physically forced to sign the agreement? A No, absolutely not. Q Was she coerced to sign the agreement? A Absolutely not. Ms. Weaver's daughter had tried to get her to leave the mediation before signing the agreement. However, Ms. Weaver stayed and signed. Thus, the evidence presented at the hearing shows that Ms. Weaver signed the Settlement Agreement of her own volition and that Mr. Kolodinsky did not apply any undue influence thereby destroying Ms. Weaver's free agency. Rather, it simply appears that the day after signing the Settlement Agreement, Ms. Weaver regretted her decision to settle and came up with different reasons at different times in an attempt to blame Mr. Kolodinsky for allegedly causing her to sign the agreement. Likewise, the evidence presented during the hearing demonstrates that the free agency of Ms. Weaver was not destroyed on the day of the mediation and that the Settlement Agreement was executed of the Petitioner's own volition. Moreover, as noted above, at the hearing Ms. Weaver's story changed when she claimed that the reason she signed the Settlement Agreement was because Mr. Kolodinsky silently told her "You will take it." Such a statement is not sufficient to demonstrate that Ms. Weaver's free agency was destroyed and that she did not sign the Settlement Agreement on her "own volition." Regardless of whether Mr. Kolodinsky made such a statement, Ms. Weaver, in her own letter, admitted that she "[came] to a decision". She did not state in the letter that Mr. Kolodinsky forced or coerced her to enter into the Settlement Agreement. Moreover, even if the statement was made, testimony regarding Ms. Weaver's behavior and lack of protest during the time she was signing the Settlement Agreement provides firm evidence that she was not being forced or coerced into signing the Settlement Agreement. Finally, Ms. Weaver does not dispute that she signed page one of the Settlement Agreement and that all the terms and conditions were included on page one when she signed it. Page one of the Settlement Agreement provides: Defendant agrees to pay to Plaintiff as full and complete settlement of all matters arising in this cause of action the sum of $35,000 and see attached. Plaintiff agrees to execute any Release form generally required to be executed in settlements of disputes of this nature. The case number on page one of the settlement agreement is the Division of Administrative Hearings case number for this matter. Thus, it is clear that all the terms on page one were on the page when Ms. Weaver signed it. With regard to page two of the Settlement Agreement, Ms. Weaver alleges that it was not reduced to writing when she signed it. Contrary to Ms. Weaver's testimony, Southern Bell's EEO manager, Mr. Brown, testified that he signed the Settlement Agreement immediately after Ms. Weaver and that when he signed the Settlement Agreement all the terms and conditions set forth on the page two, as shown in Respondent's Exhibit No. 1, were contained in the document. Mr. Kolodinsky also testified that all the parties signed page two of the Settlement Agreement after the three paragraphs were added. Ms. Weaver's daughter confirmed Mr. Kolodinsky's testimony when she testified that Mr. Kolodinsky was "writing stuff down" on a yellow pad before her mother signed the document. The testimony of Mr. Brown and Mr. Kolodinsky that all three paragraphs on page two of the Settlement Agreement were reduced to writing when Ms. Weaver signed the Agreement and the conflicting statements provided by Ms. Weaver during her deposition and the hearing, prove that when Ms. Weaver signed page two of the Settlement Agreement all the terms and conditions were reduced to writing. Along the same line, during the hearing there was considerable testimony regarding whether the Settlement Agreement was read to Ms. Weaver or whether Ms. Weaver read the Settlement Agreement. In either event, Ms. Weaver had the opportunity to read the agreement or have it explained to her and just as with any other agreement or contract the contract is binding if it is signed. 11 Fla. Jur. Section 14, Merrill Lynch v. Benton, 467 So. 311, 313 (Fla. 5th DCA 1985) (contract held enforceable where customer claimed that although she signed the contract she could not read it because she did not know English) Therefore, Ms. Weaver signed the contract and should be bound by the terms and conditions regardless of whether she read or did not read the contract or whether or not the contract was read to her. Moreover, the evidence was clear that Ms. Weaver understood the terms of the settlement agreement and even suggested a clause which was incorporated in the agreement. In summary, regardless of whether the terms and conditions on page two of the Settlement Agreement were read to Ms. Weaver, whether she read them herself, or whether she just signed the document without reading the conditions, the terms and conditions of the Settlement Agreement are binding. 11 Fla. Jur. Section 14; Merrill, Lynch v. Benton, 467 So. 311, 313 (Fla. 5th DCA 1985).
The Issue Whether the State of Florida, Department of Management Services, State Technology Office (Respondent) issued a Notice of Intent to Award a contract, pursuant to an Invitation to Negotiate (ITN), to Motorola, Inc., (Intervenor) which was contrary to Respondent’s governing statutes, rules, polices, or any applicable bid or proposal specification.
Findings Of Fact On or about September 5, 2003, Respondent issued ITN 009 for a “interoperability” network solution to enable public safety users of disparate systems to have interoperability between their various communications systems. Since the State of Florida has no common radio communication technology for public safety agencies, Respondent sought solutions, through the ITN, that would permit first responders and other safety personnel to integrate various disparate systems in time of need. By the response submission deadline of October 28, 2003, four vendors submitted replies to the ITN: JPS Communications (Raytheon), Unisys, Petitioner, and Intervenor. The process of selecting one of the vendors proceeded in three phases: an evaluation of replies phase, a presentation phase, and a negotiation phase. Five teams of evaluators (24 team members) from first responder agencies around the state that will have to use the system were appointed by Respondent to review and evaluate the replies. The evaluation team members met November 3 through 5, 2003, to begin the process. Each of the five teams evaluated the replies and assigned scores to each proposer’s solution to the problem. Respondent averaged the scores of the five teams and assigned raw scores, not inclusive of costs, to vendor proposals as follows: Raytheon, 72.0; Petitioner, 102.4; Intervenor, 101.8; and Unisys, 58.2. On November 19, 2003, Respondent posted the initial ranking of vendors selected for further consideration. Petitioner, Intervenor, and Unisys were selected to make presentations regarding their proposed solutions. Petitioner filed a protest with regard to the ranking, pursuant to provisions of Section 120.57(3), Florida Statutes, but subsequently withdrew that protest. Following the presentations by the three vendors (Petitioner, Intervenor, and Unisys), on December 2 and 3, 2003, the evaluation teams again scored the vendors with the following result: Petitioner, 105.33; Intervenor, 113.33; and Unisys, 85.66. Notice of the ranking of the three vendors was posted on December 19, 2003. All three vendors were asked by Respondent to continue into the final phase, negotiations. Respondent formed a team of four negotiators, assisted by a technical subject matter expert, to negotiate with the three finalists. Numerous meetings of the negotiators were convened to make a determination as to which proposed solution constituted the “best value to the state.” During that time, Respondent’s negotiators engaged in a discussion of vendor replies; face to face negotiating sessions with vendors; discussion of technical issues with the parties and technical experts; and discussions among themselves as a group. Respondent requested all three remaining vendors to submit “best and final offers” (BAFOs) on February 16, 2004. All three vendors complied with Respondent’s request and submitted BAFOs on February 18, 2004. Final prices were: Unisys, $23,011,660; Intervenor, $23,026,742; and Petitioner, $34,216,586. Based on those prices and the determination of “best value” by the negotiating team, Respondent ranked Intervenor as first choice; Unisys as second choice; and Petitioner as third choice. Respondent posted Notice of Intent to award the contract to Intervenor on March 5, 2004. Respondent stated in the notice that it would attempt to negotiate the contract first with Intervenor; and, failing successful negotiation, proceed next with the other finalists. Petitioner filed a Notice of Protest on March 10, 2004, and requested formal administrative proceedings. By operation of law, further negotiation between Respondent and Intervenor was stayed. Intervenor filed a Petition to Intervene, which was granted on March 29, 2004, following referral of the matter to DOAH. Petitioner alleges that Respondent used criteria and an evaluation process that was inconsistent with the criteria, evaluation and process set forth in the ITN. Paragraph 4.11 of the ITN is entitled “Evaluation Criteria” and outlines a broad evaluation criteria to obtain “best value for the state” that reads in relevant part as follows: Technical Solution (50%): Criteria for this part of the evaluation will be taken from Tabs B and C including system design, local system modifications, functionality, security, standards, and ease of use. This also includes implementation, system support and administration, and training. Implementation, Support and Company Qualifications (20%): Criteria for this part of the evaluation will be taken from Tab D. Cost (30%): Criteria for this part of the evaluation will be taken from Tab E. During the first phase of the negotiation, the five evaluation teams were permitted to score responses of vendors by using information from anywhere in a vendor’s reply. Nothing in paragraph 4.11 of the ITN specifies that Respondent score every criterion in Tabs B, C, and D. Respondent’s negotiation team had extensive discussions on each proposal. Team members reviewed design, implementation, and technology of each vendor’s solution to insure that vendors had a full understanding of what was being proposed. Although negotiation team members discussed many of the same criteria used by the evaluation teams, the score sheets of the evaluators were not in front of the negotiators. In the course of three days of negotiations, Respondent’s team members asked vendors questions with the intent of determining weaknesses and strong points in each individual proposed solution. Consequently, Respondent negotiators obtained valuable improvements and additions to the vendors’ proposed solutions. Notably, Respondent’s negotiation team obtained a substantial reduction in price from Intervenor during the process. Intervenor’s initial price for implementation and five years of operation and maintenance of the system was $39,953,341. In its BAFO, Intervenor reduced this amount to $23,026,742. By contrast, Petitioner’s price increased from $33,807,491 to $34,216,586 after the process. Respondent’s negotiation team viewed the scoring and rankings from the prior phases as an indication that the three remaining vendors were qualified to deliver the services sought by the agency. Negotiators for Respondent did not rank vendors until the very end of the process, after a review of all information, and receiving the BAFOs. Scores from the prior evaluation phase were not used to rank vendors in the negotiation phase, but simply as a check or validation of the negotiation team’s independent ranking. Each member of the negotiating team arrived independently at the conclusion that Intervenor’s solution presented the best value to the state. No evidence was provided that scores from the reply and presentation phases had any impact on the process beyond qualifying vendors to participate in negotiations.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order denying Petitioner's protest. DONE AND ENTERED this 25th day of May, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 2004. COPIES FURNISHED: Gerard York, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Thomas F. Panza, Esquire Panza, Maurer & Maynard, P.A. Bank of America Building, Third Floor 3600 North Federal Highway Fort Lauderdale, Florida 33308-6225 William E. Williams, Esquire Huey, Guilday, Tucker, Schwartz & Williams, P.A. 1983 Centre Point Boulevard, Suite 200 Post Office Box 12500 Tallahassee, Florida 32317-2500 Alberto Dominguez, Esquire General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Foyt Ralston, Acting Chief Information Officer State Technology Office Department of Management Services 4030 Esplanade Way, Suite 115 Tallahassee, Florida 32399-0950
The Issue The issue in this cause is whether Respondent engaged in conduct while on duty in violation of Pinellas County Sheriff's Office Civil Service Act, Laws of Florida, 89-404, as amended by Laws of Florida, 90-395, Section 6, subsection 4: (1) conduct unbecoming a public servant; and (2) sexual harassment and discrimination.
Findings Of Fact As noted above in the Preliminary Statement, the parties have entered a Joint Settlement Agreement and General Release and Waiver of Right to Sue. Their agreement, in pertinent part, includes the following: The demotion of Petitioner from sergeant to detention deputy shall remain in full force and effect as previously imposed by Respondent. The fifteen-day suspension imposed upon Petitioner as discipline . . . shall be reduced to a ten-day suspension. Respondent shall reimburse Petitioner for five days of back pay as a result of the reduced suspension, including any benefits associated with such pay and the deduction of all required taxes and contributions. Petitioner shall execute a full release of all claims against Respondent up to and including the date of the execution of the release. Each party shall bear his own attorney's fees and costs. The parties' Joint Stipulated Settlement Agreement and General Release and Waiver of Right to Sue constitute an informal disposition of all disputed issues of material facts in this proceeding.
Findings Of Fact The City and Charging Party executed their first collective bargaining agreement on November 5, 1974. This agreement under its terms was made retroactive to October 1, 1974. Among the provisions of the agreement is Article 9, which sets forth the grievance procedure. Its last step is final and binding arbitration. Paul Williams, a firefighter employed by the City and covered under the agreement, had apparently had a history of pay problems going back to 1973 when Williams was allegedly placed in the improper pay classification based upon his years of service. The exact nature of the difficulty was not explored because it is not material to the issue present in this case. However, Williams subsequently sought to correct this situation, which apparently adversely affected his pay, by various means to include discussing the matter with various superiors in both the fire department and city administration. This matter was never officially resolved or a decision reached which was satisfactory to Williams. In December 1974, Williams received his first check under the newly negotiated contract. He went immediately to his union representative and complained that he was not being paid in accordance with the contract's terms and the service which he had. In short, the alleged error about which Williams had complained nearly 18 months had been continued under the computation of Williams' pay under the newly negotiated contract. Williams filed a grievance under the contract in December 1974, disputing his pay classification and seeking adjustment to his wages from October 1, 1974, the effective date of the contract. His grievance was therefore filed within six months of the date the alleged dispute arose regarding his classification and wage under the contract. The grievance was approved by the union grievance committee, as the first step in the grievance procedure. Thereafter, the grievance was submitted to the fire chief, who requested that he be given several days to check around and see what he could do. On or about December 20, 1974, the fire chief advised the men that he lacked authority to change the pay status of Williams, thus leaving the matter unresolved at the second level. The matter was pursued to the third step, referring it to the city manager. During the latter part of December and January, the city manager discussed the Williams' grievance with the union representative. By January 14, 1975, there had been no progress in resolving the matter, and the union representative notified the City of its intent to invoke Step 4 of the grievance procedure outline in Article 9, supra. The City has refused to move to Step 4, which is submission to a grievance committee whose decision is final and binding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends the Commission order the Employer to cease and desist from refusing to take Williams' grievance to the final step in the grievance procedure set out in the collective bargaining agreement. Further, the Hearing Officer recommends that an appropriate public notice to employees of the Public Employer be posted in conspicuous placed where notices to employees are usually posted for a period of time determined by the Public Employees Relations commission. This report is respectfully submitted this 26th day of March, 1976, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Blake, Esquire Alley and Alley, Chartered Post Office Box 1427 Tampa, Florida 33601 Tom Brooks, Esquire Staff Attorney Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida 32301 Robert W. Vause, President Tarpon Springs Professional Fire Fighters, Local 2353 1408 Ledgestone Drive New Port Richey, Florida
The Issue Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.
Findings Of Fact An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows: ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s). Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following: EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ... Also on the first page of the ITB form used by Respondent is the following: AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses Petitioner's bid protest. DONE AND ENTERED this 9th day of March, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1993. COPIES FURNISHED: Franklin C. Taylor, Jr. Herbert J. Taylor Custom Ceilings of the Palm Beaches, Inc. Post Office Box 9592 Riveria Beach, Florida 33404 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869 Abbey G. Hairston, General Counsel Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813
