Findings Of Fact The Business of Respondent The Respondent is a public employer with its principle place of business located in Orange County, Florida, where it is engaged in the business of operating a school system. Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to the public officials or to the general electorate. Respondent is now, and has been at all times material herein, a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The Orange County Classroom Teachers Association is now, and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. Background During April, 1975, PERC certified the employee organization as the exclusive bargaining representative of all employees in the following collective bargaining unit: INCLUDED: All certified non-administrative personnel including the following: teachers, teachers-countywide, teachers-exceptional, teachers-gifted, speech therapist, teachers- specific learning disabilities, teachers-adults full-time, guidance personnel, occupational specialist, teachers-adult basic education, librarians-media specialist, deans, department chairpersons, physical therapist. EXCLUDED: All other positions of the Orange County Public Schools. Soon thereafter, the CTA and the School Board began negotiations for a collective bargaining agreement. Each party submitted written proposals or counter proposals. (See Joint Exhibit #3 and #4, received in evidence). When negotiations began, teachers in the bargaining unit represented by the CTA were employed in one of the following categories: 10, 11, or 12-month contract. While most bargaining unit members were on 10-month contract status, some guidance counselors and approximately 90 teachers commonly referred to as vocational/technical teachers were on 12-month contract status. `These 90 vocational/technical teachers had been on 12-month contract status since at least 1970 and some since at least 1965. The negotiations resulted in a collective bargaining agreement which became effective on October 1, 1975. (Joint Exhibit #1). Neither the CTA's proposals nor the School Board's counter proposals for the 1975-76 contract contained a provision expressly granting the School Board the right to unilaterally change 12-month employees to 12 month status. Additionally, there was no specific discussion during negotiations regarding the alteration of the vocational/ technical teachers' 12-month contract status. During late spring, 1975, the Charging Party, and others similarly situated, were informed that during the 1975-76 fiscal year (which runs from July 1, 1975 through June 30, 1976) they would be employed for a full twelve months. They began their twelve month period of employment on July 1, 1975, prior to the effective date of the collective bargaining agreement-between the Board and the teachers' union. At that time there were approximately 200 teachers employed within the vocational/technical and adult education department. During the 1975-1976 school year, the school system with the exception of the post-secondary programs operated for two full semesters plus a summer school. Portions of the post-secondary programs, such as the vocational/technical and adult educational programs operated on a year-round basis. During the school year, the School Board decided to institute a system- wide program of year-round schools by adopting the quinmester system. Under the quinmester system the year is divided into five terms, each consisting of forty- five (45) days of student class time. Students can attend all five terms (or quins) thereby allowing them to graduate early, take extra courses or make up failed courses. Respondent takes the position that it was not possible to employ teachers on the 12-month basis as they would not be available for the required number of days. This is based on the fact that, as stated during the hearing under the 12-month system of employment, employees were only available for a total of 233 working days. Such a figure is derived by taking the number of days in a year, 365, and subtracting the number of Saturdays and Sundays, 104, which leaves 261 days. The School Board allows up to nineteen (19) days annual leave each year. Further, employees did not work on nine legal holidays on which the school system was closed which together with the 19 days annual leave made an additional 28 days that the employees would not be available for work in addition to the 104 Saturdays and Sundays. Thus when Saturdays, Sundays, Holidays and leave time are subtracted from the total 365 days, there are 233 available working days that employees working on a 12-month basis would be available. Therefore, the Board contended that in making its operational decision to change to a year-round school system, by adoption of the quinmester program, it needed employees to be available for 237 days if the teacher would be available to work all five quinmesters. Such a figure is derived by computing the number of days that the student will attend and the number of days that the teacher would therefore be required to be in attendance. Under the quinmester system, the student attends classes forty-five (45) days each quinmester, which means that the teacher needs to be present at least 225 days when the students are going to be present. Additionally, the Respondent urges that the collective bargaining agreement (Joint Exhibit #2) requires that teachers be on duty twelve (12) days when the students are not in attendance. These twelve days consist of five days of preplanning, five days of in-service training and two days of post-planning. With these figures, it is apparent that the teacher who is to work the entire year must be available the 225 days which the students are to be present together with the twelve days which the students are not present. Thus, wider this system, the teachers must be available 237 days during the school year. It is based on these figures that the Respondent contends that it made the operational decision to convert to a year-round school system, during the spring of 1976. In so doing, the Board advised its employees in the bargaining unit that they would be employed for an initial period of ten (10) months and given an extended contract for services rendered in programs extending beyond the regular school year. The regular school year comprises 196 days during a 10-month period of employment. Under the 10-month appointment, the teacher would be employed for an initial period of 196 days as provided for by the collective bargaining agreement and by statute. Out of the 196 days, the teacher earns 4 days leave which leaves available 192 work days in the initial employment period. The 192 work days include the 12 days that teachers are present and students are not. It also includes 180 days that the teacher is present with the students. This of course equals the first 4 quinmesters. The teacher employed to work year-round during the fifth quinmester would, under the operation of the quinmester system, be issued an extended contract to cover the additional 45 days of the fifth quinmester. By so doing, the 45 working days of the fifth quinmester with the 192 working days of the initial employment period provided for in the 10-month contracts provides the total 237 days needed to implement the year-round school system. It suffices to say that the neither the employee organization nor Respondent bargained about the implementation of the year-round school system. The teachers' union was not given advance notice of this action by the school board nor was there any attempt by the school board to bargain the impact of this decision with the teachers' union. During the course of the hearing, the Respondent introduced evidence to establish that the Charging Party and others similarly situated who are employed on a 10-month basis would receive a salary of $17,629.00 whereas the salary for the same services rendered under the 10-month plus extended contracts for the fifth quinmester would be $18,063.75. Respondent also introduced evidence establishing that the sick leave under either system was identical and that the Charging Party and others similarly situated are able to work 4 more work days under the 10-month plus extended contract than was available under the 12-month system. As stated, Respondent does not deny that it made its decision to employ vocational/technical teachers on a 10 month plus extended contract basis and that such was a departure of the contract status which said teachers had received in the past. In making its decision, Respondent contends that its acts were permissible under Chapter 447.209,F.S., since it is clothed with the statutory authority to unilaterally "determine the purpose of each of its constituent agencies, set standards of services to be offered to the public, and exercise control and discretion over its organizations and operations It contends further that armed with this authority, it was not required to bargain concerning its management rights (which it contends that this was) in that here there is no violation of any contractual provision or of any other section of Chapter 447, Florida Statues, since Chapter 447 does not call for year-round bargaining. Chapter 447.309, F.S., provides in pertinent part that a certified employee organization and the public employer shall jointly bargain collectively in the determination of the wages, hours, and terms and conditions of employment of bargaining unit employees. Respondent contends that since a collective bargaining agreement "shall contain all the terms and conditions of employment for the bargaining unit employees" and that since the current collective bargaining agreement does not provide in any part that bargaining unit employees are given a contractual right to a 12 month contract, there has been no violation of Chapter 447, F.S. While research reveals no reported decisions in Florida defining or otherwise interpreting terms and conditions of employment, other public employment relations boards aid state courts have determined that terms and conditions of employment means "salaries, wages, hours, and other terms and conditions of employment". The length of the work year is a function of hours or work and thus has been determined to be a term of employment, and thus a public employer is required to negotiate with its employees concerning all terms and conditions unless a specific statutory provision prohibits negotiations on a particular item. See for example, Board of Education of Union Free School District #3 of the Town of Huntington v. Associated Teachers of Huntington, 30 N.Y. 2nd 122 at 129. First of all it is clear in this case that there has been no bargaining on this item and further that there has been no express waiver to bargain regarding the employment term. It is also clear that the employees in question had been granted 12 month contracts during previous years and that they were not advised of the alteration of the term of their contracts until Respondent had unilaterally made its decision to employ said teachers on a 10 month plus extended contract basis. Finally, there is no specific statutory provision which prohibits the parties from negotiating the term of the employment contract other than Section 447.209(5), F.S., which is inapplicable here. Based thereon, I find that the Respondent's actions in unilaterally adopting a year round instructional program by terminating the 12 month contract status of teachers-adult full-time and teachers-adult basic education by placing such teachers on 10 month plus extended contract status was a unilateral alteration of a term and condition of said employees' employment relationship in violation of Sections 447.501(1)(a) and (c) and is a derivative violation of Section 447.301(a) of the Act.
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it: Bargain collectively upon request, with the Orange County Classroom Teachers Association as the exclusive representative of the employees in the unit described above. Such duty to bargain shall extend to all mandatory subjects of bargaining including changes in the term of the contract year of said bargaining unit employees. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by PERC, a notice substantially providing: that it will not refuse to bargain, upon request, with the Orange County Classroom Teachers Association, as exclusive representative of the employees in the unit described above; and that its duty to bargain shall extend to all mandatory subjects of bargaining including, but not limited to, any changes in the term of the employment contracts of bargaining unit employees. DONE and ORDERED this 17th day of February, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rowland, Petruska, Bowen & McDonald by John W. Bowen, Esquire 308 North Magnolia Avenue Orlando, Florida 32801 Thomas W. Brooks, Esquire Staff Attorney for the Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 John W. Palowitch, President Orange County Classroom Teachers Association 6990 Lake Ellenor Drive Orlando, Florida
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee, where Respondent has confessed to a felony shoplifting charge as part of a deferred prosecution agreement pursuant to which criminal charges will be dismissed if Respondent satisfactorily complies with the agreement.
Findings Of Fact The evidence presented at final hearing established the facts that follow. At all times material, Respondent Cassandre Lawrence (“Lawrence”) was employed in the Palm Beach County School District (the “District”) as a paraprofessional (teacher’s aide), a position which she had held for approximately six years before the events that gave rise to the instant proceeding.1 Lawrence was working at Northmore Elementary School during the 2000-01 school year. On December 26, 2000, Lawrence and a female companion were arrested at the Boynton Beach Mall on shoplifting charges. Lawrence was charged with grand retail theft, which is a third degree felony. Pursuant to Board Rule 6Gx50-3.13,2 all District employees must report any arrests, convictions, “commitment[s] to a pretrial diversion program,” or pleas of any kind within 48 hours after the reportable event.3 At the time of Lawrence’s arrest, however, the District’s schools were closed for Christmas vacation, so she did not report the incident immediately. Instead, on January 9, 2001——Lawrence’s first day back at work after the holidays——Lawrence submitted to the District’s Chief Personnel Officer a written disclosure of her arrest, which stated: On December 26, 2000 I was shopping in the Boynton Beach Mall with a friend. Unknowingly, she put some items in my shopping bag. I was falsely arrested. My friend has admitted doing so [sic]. I felt that being an employee of the School Board that [sic] I should report this matter. This matter would be dissolved [sic] very soon. I have never been in any trouble or accused before. This situation has really been bothering me. After this matter has been straightened out I will be forwarding you the necessary paper work. Lawrence’s statement was provided to the District’s Office of Professional Standards on January 10, 2001. That office opened a case file on Lawrence. On March 29, 2001, Lawrence reached an agreement with the state attorney that provided for her referral to a pretrial intervention program (“PTI”). See Section 948.08, Florida Statutes (governing pretrial intervention programs). This agreement was reduced to writing on April 3, 2001, when the parties executed a contract they called the Deferred Prosecution Agreement (“Agreement”). Under the Agreement, the state attorney promised, in return for Lawrence’s agreement to abide by conditions specified in the Agreement, to defer the prosecution of Lawrence for a period of 18 months from the date of April 3, 2001. Further, the state attorney agreed that if Lawrence complied with the conditions of the Agreement, then “no criminal prosecution concerning [the shoplifting] charge [would] be instituted[.]” By signing the Agreement, Lawrence expressly waived her constitutional rights to a speedy trial. On the same day she executed the Agreement, and in consideration thereof, Lawrence signed this statement: I, Cassandre Lawrence freely and voluntarily admit that I am guilty of the allegations [of grand theft] contained in [the charging document]. (This statement will be referred to hereafter as the “Confession.”)4 Sometime shortly afterwards——the evidence does not reveal the exact date——Lawrence reported to the District that she had entered into a PTI pursuant to the Agreement. As a result, on April 19, 2001, Mr. Holeva of the District's Office of Professional Standards met with Lawrence, her attorney (who participated by telephone), and her union representative,5 to investigate the circumstances surrounding the shoplifting charge against Lawrence. In this meeting, Lawrence acknowledged that, to enter into a PTI, she had signed the Confession wherein she admitted guilt to the felony theft charge——a so-called “435 offense.”6 Following this interview, the Office of Professional Standards referred Lawrence’s case to the Case Management Review Committee (the “Committee”). The Committee is composed of a dozen senior District employees who are responsible for determining whether probable cause exists to discipline an employee suspected of having engaged in misconduct. Upon review, the Committee determined that Lawrence had violated Board Rule 6Gx50-3.13 by failing to timely report her arrest and later referral to a PTI within 48 hours after these respective events had occurred. (Yet, it should be noted, Lawrence had not concealed the material facts, nor had she attempted to mislead the District.) However, the Committee considered Lawrence’s purported failures strictly to follow the notification rule to be, collectively, a minor infraction that, without more, would have warranted at most a written reprimand. Much more important, the Committee found that Lawrence was guilty of a “435 offense.” Because the District’s settled policy and consistent practice is to terminate any employee who has committed a “435 offense,” the Committee recommended that Lawrence’s employment be terminated. The Superintendent accepted the Committee’s recommendation that Lawrence be fired. By letter dated June 29, 2001, the Superintendent notified Lawrence that he would recommend to the Board at its July 11, 2001, meeting that she be suspended without pay pending dismissal. The Board subsequently accepted the Superintendent’s recommendation. Lawrence has been suspended without pay since on or about July 11, 2001.
Findings Of Fact Broward County and Broward County Board of County Commissioners is a Public Employer within the meaning of Section 447.203(2), F.S. (stipulation of parties). The Teamsters Local Union #769, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is an Employee Organization within the meaning of Section 447.203(10), F.S. (stipulation of parties). In January, 1974, thirty three airport security police employees of the Respondent who worked at the Ft. Lauderdale- Hollywood International Airport and North Perry Airport signed cards authorizing Teamsters Local Union #769 (hereinafter "Union") to represent them for the purpose of collective bargaining with the Respondent (Complainant's Exhibit 6, testimony of Mr. Sack). By letter of January 7, 1974, to Mr. Robert R. Kauth, Broward County Administrator, the Union advised that it represented the airport security employees police and requested that the Respondent recognize the Union as the collective-bargaining representative of the employees and enter into negotiations for the purpose of obtaining a collective bargaining agreement. The Union further offered to demonstrate evidence that it represented the aforesaid employees (Complainant's Exhibit 7, testimony of Mr. Sack). Mr. Kauth responded in a letter dated January 28, 1974, and advised the Union that its letter had been referred to the Board of County Commissioners, but in view of "existing state law", the Commission was unable to and could not recognize the Union as the collective bargaining representative of the airport employees in question (Complainant's exhibit 8). The Union responded by a letter of January 30, 1974, requesting that Mr. Kauth identify the "existing state law" referred to in his letter and advised that the International Union's Constitution specified that the Union did not assert the right to strike amoung employees in the public sector. It also informed Mr. Kauth that the Florida Constitution and statutes guarantee public employees the right to organize and to bargain collectively through a representative of their choice (Complainant's Exhibit 9). Receiving no further response from the Respondent, the Union filed a complaint for declaratory relief and mandatory injunction in the Circuit Court of the Seventeenth Judicial Circuit for Broward County requesting the Court declare that the Union be recognized by the Respondent as the collective bargaining representative for the airport security police employees who had designated the union to represent them, and directing and requiring the Respondent to enter into collective bargaining with the Union as required by Art. 1, Section 6 of the Florida Constitution, and Section 839.221(2), F.S. On July 29, 1974, the Court entered a final decree requiring Respondent to grant recognition to the Union pursuant to Art. 1 Section 6 of the Florida Constitution "as the collective bargaining representative or agent of those airport security police officers employed by the Defendants at the Ft. Lauderdale-Hollywood Airport and North Perry Airport, who, are members and who remain members of the Plaintiff or who have freely and expressly given their consent to the Plaintiff labor organization to act as their collective bargaining agent" (Complainant's Composite Exhibit 11). As a result of the court order, the parties began bargaining, and proposals and counter-proposals were exchanged during the period commencing August, 1974 (Complainant's Exhibit 13, testimony of Mr. Sacks). At one of the negotiating sessions in October, the Respondent gave the Union its proposal for a recognition clause in the eventual agreement, which provided that the Respondent recognized the Union as the collective bargaining representative for those employees who were and would remain members of the Union, and that it would continue recognition after January 1, 1975 for the term of the agreement provided that the Union complied with all state requirements pertaining to recognition as contained in Chapter 447, F.S., and that otherwise recognition and the agreement would cease forthwith (Complainant's Exhibit 14, testimony of Mr. Elster). The Union thereupon filed a motion in the Broward County Circuit Court to hold the Respondent in contempt for violation of the previous final decree. The court, on October 30, 1974, citing Sections 447.009 and .022, F.S., found that the Respondent's proposal as to recognition was not a proper subject of collective bargaining at that time and ordered that it be stricken as a proposal (Complainant's Exhibit 15). At the twelfth negotiation session held on January 8, 1975, the parties reached a proposed collective bargaining agreement, with representatives placing their initials on a rough-draft (Complainant's exhibit 16). Counsel for Respondent agreed to provide a final draft in one week which thereafter was to be submitted to the county commission and the Union membership for approval and ratification. On January 17, the employees in the unit voted to accept the, agreement and new authorization cards were executed by the employees. At this time there were 49 employees in the unit and 46 authorization cards were signed at this time (Complainant's Exhibit 18). Further correspondence and discussions ensued, resulting in agreement on a final draft of the proposed agreement (Complainant's Exhibits 17-21). Article 1 of the proposed agreement concerning recognition provided that the county recognized the Union as the collective bargaining representative of all airport security officers employed by the county at the airports in question "who are members and who remain members of the union, or who have freely and expressly given their consent to the Union to act as their collective bargaining agent". The draft was approved by telegram from the Union's Counsel on February 20th, A except for failure to put the effective date of the agreement, i.e., January 8, 1975 in the draft (Complainant's Exhibit 22). Upon request of the Union, the matter was placed on the agenda of the Board of County Commissioners for its March 4th meeting. By letter to the County Administrator, dated February 28, Respondent's counsel advised that the original recognition had been by court order to recognize the Union "for members only"; that new state labor legislation required that a labor organization register with and be certified by the Public Employees Relations Commission as the majority representative of employees in an appropriate bargaining unit before a legal obligation by a public employer to recognize and bargain with the Union is established; that the Union had not met the registration and certification requirements and that the County was currently appealing in the Fourth District Court of Appeals the order of the lower court which had stricken one of the Respondent's contract proposals during negotiations. He therefore stated that it would be appropriate for the County Commission to consider the appeal before rendering a decision on the proposed agreement (Complainant's exhibit 23). The County Commission, at its meeting, deferred action on the agreement because the Union had not been registered nor certified under current law, and directed its counsel to request an advisory opinion from PERC on the status of the Union in reference to the state statute (Respondent's Exhibit 2). By letter, dated March 12, counsel for the Respondent sought such an advisory opinion from PERC (Respondent's Exhibit 13). Notwithstanding the lack of action by the County Commission, Respondent's Director of the Division of Airports determined to observe the terms of the proposed contract as to various working conditions (Complainant's Exhibit 24). The Union had made an abortive attempt to register with PERC on June 28, 1974, but this was before PERC had been organized and apparently the request was never received (Complainant's Exhibit 12, testimony of Mr. Sack and Mr. Elster). On March 10, 1975, the Union again submitted registration materials to PERC and, by letter of March 25, 1975, the Commission advised the Union that it had met the registration requirements of the statute (Complainant's Exhibit 28). On April 18, 1975, the Union filed a Recognition - Certification petition with PERC seeking certification of the airport security police personnel (Complainant's Exhibit 30), and on May 8, 1975, the Union filed the unfair labor charge against the Respondent alleging that it had violated Section 447.016(1)(a)(c), F.S., by attempting to withdraw recognition that was previously established between the parties and by refusing to sign a final agreement which had been agreed upon on January 8, 1975, (Complainant's Exhibit 1). On or about May 16, 1975, the Union filed with PERC a Motion to Waive the Posting Requirements of Recognition Acknowledgement and Motion to Expedite Processing of Unfair Labor Practice Charges (Complainant's Exhibit 31). In this motion, the Union requested that the posting requirements of recognition acknowledgement under PERC Rule 8H-200.4 (now 8H-2.04) be waived and certification issued based on the fact that it would be inequitable and against the intent and purposes of the statute to deny certification under Section 447.009(1) because recognition had been obtained by court order and the Union represented a majority of the employees in the unit. However, the petition for Recognition - Certification was withdrawn by the Union on June 3, and by letter of June 10, PERC advised it that the withdrawal request had been approved (Complainant's Exhibit 32). The record does not disclose that PERC took any action on the Union's aforesaid motion to waive the posting requirements of recognition-acknowledgment. In April and early May, the parties met and negotiated over a "wage reopener" provision contained in the proposed collective bargaining agreement. However, on May 19, Respondent's Counsel declined to grant a request for a further meeting stating that since the Union had rejected counter-proposals of the Respondent's negotiating team on April 21, it was felt that further meetings would be unproductive (Complainant's Exhibit 25-27). On July 31, 1975, the Union filed an amended unfair labor practice charge against the Respondent and, on August 8, the Acting General Counsel of PERC issued a Complaint and Notice of Hearing which alleged unfair labor practices in violation of Section 447.501(1)(a) and (c) by reason of Respondent's refusal to execute the agreed upon contract and by unilaterally terminating negotiations with the Union thus having failed and refused to bargain in good faith (Complainant's Exhibit 1). On September 12, 1975, subsequent to the hearing, the Fourth District Court of Appeal rendered an opinion that the points on appeal were moot and that jurisdiction of the issues involved between the parties is in PERC pursuant to Section 447, F.S., and dismissed the appeal of Respondent concerning its proposed recognition clause (Hearing Officer's Exhibit 1).
Recommendation It is recommended that the Public Employees Relations Commission, pursuant to Section 447.503(4)(b) issue an order dismissing the charges. DONE and ENTERED this 7th day of November, 1975, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen M. Elster, Esquire MAMBER, GOPMAN, EPSTEIN & FOOSANER 16870 Northeast 19th Avenue North Miami Beach, Florida 33162 Thomas W. Burke, Esquire 2005 Apalachee Parkway Suite 105 Tallahassee, Florida 32301 Joseph A. Caldwell, Sr., Esquire Suite 600, 100 Biscayne Boulevard North Miami, Florida 33132
Findings Of Fact Jurisdiction The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The complaint alleges, the parties admit, and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. In addition, the complaint alleges, the Respondent admits, and I find that the Charging Party is now, and has been at all times material herein, a certified representative for the purposes of collective bargaining for all employees employed by the Duval County School Board in the following described unit: INCLUDED: Classroom teachers: nursery, kindergarten, elementary (primary 1-3), elementary (intermediate 4-6), elementary (1-6), junior high (7-9), senior high (10-12), driver education, exceptional (special education), remedial, resource (art, music, etc.), vocational-home econo- mics, vocational distributive, vocational agriculture, vocational trade and indus- trial, vocational technical, office educa- tion, industrial arts, manpower and diver- sified (DCT), guidance counselors, occupa- tional specialists, media specialists, specialists-other, instructional, TV instructor, other instructional (except administrative assistants). EXCLUDED: Associate superintendents, general directors, directors, supervisors, coordi- nators, specialists, community school "coordinators", principals and assistant principals, and administrative assistants. The Charging Party was certified as representative of the above named employees on March 24, 1975, following voluntary recognition by Respondent. The Charging Party and Respondent were parties to a collective bargaining agreement effective July 1, 1975, which expired June 30. On March 16, Duval Teachers United's President, James W. Geiger (DTU) called Respondent's superintendent, Herb A. Sang and requested that collective bargaining for a successor agreement begin as soon as possible. Geiger suggested that bargaining commence during the first week in April which was rejected by Sang. After two other suggestions by Geiger, the parties agreed to meet on April 22, and the session opened with the introduction of the respective bargaining team members and an introductory statement by Robert B. Bates, Chief Negotiator for DTU. At the outset, Bates initially alluded to the fact that a few days prior, superintendent Sang had publicly attacked him as a "outside agitator and hired gun and that the DTU was coming to the table to pick the pockets of the taxpayers." Bates advised the Respondent's team that despite the public attack, mutual trust was essential to the negotiation process and that both sides should refrain from making such attacks in the future. Thereafter negotiations began by discussion of the ground rules which had been presented by Respondent and had been used in the previous year's negotiations. The first ground rule proposal stated that each negotiating session would be scheduled at a mutually agreeable date, time and place which would be determined at the preceding session. Bates expressed reservations about daily scheduling in light of his commitment to negotiate an agreement in St. Louis, Missouri. After some discussion with DTU President Geiger, Bates agreed with the day to day scheduling rule as proposed by Respondent. Bates also advised Respondent's team that he would like to take a vacation sometime in July, if negotiations had not been completed by that time and that he would want to clear it with Respondent's team prior to scheduling any time during that month. Respondent voiced no objections to Bates' suggestions and indicated that hopefully an agreement would be consummated prior to June 30. Thereafter the parties agreed to meet on April 28, 29 and 30, for the purpose of clearing up ground rules and according to DTU, to proceed into negotiations on the union's proposals. The parties met, as agreed, on April 28 and after three hours of discussion, the language of ground rules which had not been agreed to on April 22, was finalized. Andrew J. Knight, Respondent's chief negotiator, announced that since the ground rules stated that the parties' final proposals were to be submitted by May 10, and since all of the union's package was not in, no bargaining on proposals already submitted would occur until May 10. In this regard, the record reflects that approximately 80 percent of the DTU proposals had been submitted on April 28. When Respondent refused to commence substantive bargaining, the DTU team left the meeting with Bates advising the Respondent's team that DTU would resume bargaining when management submitted its proposals. The remainder of the DTU's proposals were submitted on May 10. Respondent's team submitted five proposals to the DTU on May 11. The parties again met on May 12, at which time Respondent's chief negotiator advised Bates that the five proposals was its entire response to the DTU's package. When Bates complained about not receiving counter proposals as to all of its proposals, the Respondent's team advised DTU that it should not look forward to receiving responses to all proposals. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by Respondent. The parties agreed to meet the following day and they placed on the agenda proposals dealing with Discipline and Discharge, Tenure, Personnel Files, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer. When the parties met on May 13, and DTU attempted to negotiate concerning Discipline and Discharge, Personal Rights, Academic Freedom, and Transfer, Knight stated that these subjects were "inherent rights of management" and therefore nonnegotiable. Respondent's counter proposals on the other agenda items were those extracted from the previous years contract. Bates tried to schedule future sessions and was told by Knight that such scheduling could not be done in view of the language of ground rule 1. (See joint exhibit 4). Bates attempted to secure a commitment from Respondent that it would meet on Saturday, May 15, since he had a plane ticket on Friday that he would cancel in order to negotiate on that Saturday. Knight responded that it would "probably be OK" but refused to categorically state that it would negotiate on the 15th because the strict interpretation of ground rules precluded such commitment a day in advance. The parties agreed to and met on May 14. On May 13, Bates attempted to place items the Respondent had declared nonnegotiable back on the agenda whereupon Respondent's negotiator insisted that agendas must be "mutually agreed to" and refused to put those items on the agenda. The following day, Bates again attempted to begin discussions of the DTU proposals that he wanted on the agenda and again Knight insisted that the DTU items were not on the agenda and therefore could not be negotiated. Near the close of the session and when it was too late for Bates to depart on his flight as scheduled, Respondent declined to meet on Saturday, May The next session was held on May 19 and at that time Bates insisted that the ground rules did not provide for a mutually agreed to agenda as Respondent insisted and he (Bates) thereupon demanded that the alleged nonnegotiable items be placed on the agenda for that date. Since this item did not appear on the agenda prepared by Respondent for the 19th, Respondent refused to negotiate and Knight responded that the Board counters would be given on each issue as it came up on a "mutually agreed to agenda". The DTU team left the meeting and Bates replied that the DTU would return when management's proposal package was forthcoming. On May 28, Knight and Geiger had a phone conversation in which the parties agreed to resume bargaining on June 3. Geiger questioned whether Knight and the remainder of the Board's team were serious about bargaining and Knight replied affirmatively and that they would move "immediately into their calendars". The parties met on June 3 at 5:00 P.M. at which time the Respondent presented the expired contract as its counter proposal package. No counter proposals were given on any item in the union package which was not contained in the expired agreement. Bates again attempted to negotiate the alleged nonnegotiable items with no success. Knight replied that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been achieved pursuant to the ground rules and no mutually agreed to agenda had been set up. Knight advised however that the Board's team was willing to sit with the DTU's team but not to bargain. The parties eventually agreed to meet on June 8. At the outset, Bates advised the Board's team that the DTU was unavailable for negotiations from June 19 to June 22 because of schedule conflicts but that the DTU was available for five days preceding June 19. No agreements were reached on June 8 except an agreement to meet on June 14. On June 8, Geiger asked the Respondent's team whether it intended to predetermine bargaining concerning the calendar by its adoption of the 76-77 school year calendar which had been put into effect. The Board's response was that the calendar could be modified at the bargaining table respecting any dates that affected students. Thereafter they met daily from June 14 - 19. During this period, one agreement was reached on June 16, when a "salesman" article was signed. Thereafter Respondent maintained its prior stand on issues of summer school assignment, student discipline, and a fair treatment clause stating either that the subject items were inherent management rights or that they were matters which were nonnegotiable in that they "infringed student rights". Respecting the DTU's attempt to produce dialogue on a DTU proposal on fair treatment, Respondent made the comment that the union only represented incompetent teachers, and that competent teachers had no problems concerning the meaning of "fair and equitable". Knight said that if the union was in charge of student discipline, "the firing squad would come into existence", and that he would "take it all the way to the supreme court before this would ever go into a collective bargaining agreement". Other items such as disruptive student policy, school nurse, and evaluations were labeled nonnegotiable by Respondent. During the June 18 session, Respondent's team advised the DTU's team that any agreement reached thru negotiations after the expiration of the current agreement would not be retroactive and that if the DTU did not meet on Saturday, June 19, the Board "just might have to file an unfair labor practice charge." The parties met again on June 19, and the entire discussion centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put them into a contract. Near the end of the June 19 meeting, Respondent's team indicated that they desired to meet on Sunday, June 20, which was Father's Day. Bates declined, citing his previous commitment in Tampa to which the Respondent had been informed and when the Board's team insisted that a meeting take place on the 20th or 21st notwithstanding previous DTU commitments, the parties engaged in a lengthy discussion about both teams' failure to meet as scheduled. According to Bates, he was told that the Board's team was available to meet on Wednesday, June 23, and when Bates advised that the DTU's team would be available, Respondent's team indicated its availability. The DTU team, believing that a meeting was setup for Wednesday, June 23, arrived for the session at 9:00 A.M. but the Respondent's team did not appear. The next meeting was held on June 24, the following day. Geiger states that he advised Knight that the DTU's team wanted to commence serious bargaining at the next session and on this, he was assured by Knight that serious negotiations would occur. Geiger received a memo from Knight stressing his version which in essence was that the June 24 meeting was solely to set a date, time and agenda, pursuant to the ground rules. (See GC Exhibit 4a). Knight, as evidenced by his memo, refused to bargain at the June 24 session, insisting that to do so would violate the ground rules since in his opinion, no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour, and officially reconvened after agreement pursuant to the ground rules. Geiger commented that such a move was "silly" and that he thought Respondent was "playing games". The next session took place on June 25 which centered almost exclusively around a budget presentation by school board member, Mssr. Clemmons. Respondent submitted its first counter proposals on salary on June 3, which was identical to the then existing current salary schedule. During his testimony, Kennedy admitted that that proposal was not submitted in earnest. Respondent's second salary proposal was submitted on July 1 which was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday i.e., June 26, and that they had expected it to be offered at the earlier sessions prior to July 1. At the July 2nd meeting, DTU requested from Respondent information regarding the employee benefits article it submitted to which Knight responded that "no cost estimates had been prepared and that DTU could work out the costs as easily as the Board could". Knight advised that the board was of the opinion that DTU did not feel serious about the Board's being able to afford the proposals and therefore no estimates were prepared. Estimates however were provided at the next meeting which, according to Geiger, were prepared by Messr. Simmons, of the Board's team. In submitting them, he advised that they were not detailed estimates. Also discussed at the July 2nd meeting was the issue of the sick leave bank. The Board team expressed no objection in principle to the foundation of a bank but expressed its opinion that it was illegal. Then advised that such a bank existed in Dade County, Knight testified that he still questioned its legality since Kennedy had made inquiries of the Dade County School Board and when he inquired as to the authority for such a bank, he was told that it was not expressly sanctioned by any statute, rule or regulation. On July 1, Respondent's team requested the assistance of a mediator and DTU responded that on July 2, it had not objection to the appointment of a mediator. DTU expressed its opinion that the appointment of a mediator at that time was premature but that they had no objection based on the Respondent's commitment that they were really "ready to get down to meaningful bargaining". Geiger conversed with Bates about the DTU's availability during the following week whereupon they agreed that they would have their team there and would be at the bargaining table. The DTU's team cancelled its vacation plans and agreed to be prepared to negotiate the next week. Geiger testified that negotiations were carried on during the week July 5 - 9 and that it was a fruitless exercise in futility". On July 9, after the DTU's team was unable to obtain counter proposals from Respondent, and when they refused to schedule the next meeting date or to agree to any time after the 26th of July, a period to which Respondent had agreed to in view of the DTU's advance statements that it would be gone for the three week period during July 2 thru July 26, the Union declared impasse. Mr. Kazin, the mediator, indicated that of the two following weeks he was not available for one of those weeks since he would be out of town and the DTU's team suggested that the remaining week be spent to resume bargaining for the teacher aide unit. It should be noted that the DTU was certified to represent the regular unit in addition to the teacher aide unit and that Respondent's team was used to negotiate on behalf of the school board for both units. Geiger testified without contradiction, that Superintendent Sang had released to the press) a copy of what he termed to be "nonnegotiable issues". When the DTU's team asked Respondent's team for such a list, they were advised that no such list existed initially and after pressing for approximately three to four hours, Mr. Knight produced a list which coincided with the list which had been distributed to the press and to which Respondent indicated that it would refuse to bargain over. (See General Counsel's Exhibit 5, received in evidence and made a part hereof). No bargaining took place between the period July 9 thru August 2. Bargaining resumed on August 3, at which time the DTU demanded that Respondent place on the table the salary schedule which had been released to the press by Respondent on July 22. Respondent refused to present the schedule which had never been submitted at the table. The demand was renewed at bargaining sessions on August and 5 and it was finally submitted by Respondent on August 10. The schedule was unilaterally adopted by Respondent September 13. During the August 10 session, Bates questioned whether Kennedy and the remainder of the Respondent's team had the authority to negotiate issues reported to be nonnegotiable by Respondent. Kennedy admitted that while there was some overlap between management rights and working conditions, he refused to negotiate those areas. A special master hearing was held on August 20 and his report was received by the parties on September 1. (See General Counsel's Exhibit #6). On August 21, negotiations resumed under a court order following the issuance of an injunction which was petitioned for against the Respondent for allegedly engaging in bad faith bargaining and against the Union for allegedly participating in unlawful strike activity. On August 21, the parties reached an agreement on the language on a discipline and discharge article, however the Respondent indicated that it would not include such agreement in the collective bargaining agreement but rather would append it to the contract. Messr. Kennedy of the Respondent's team advised that a transfer proposal would be included in the contract which was the first time that such a proposal had been introduced since negotiations started in April, if the Union accepted Respondent's proposal on discipline and discharge. The Union rejected the package as unacceptable following Respondent's notice that the agreed language was not for inclusion in the collective bargaining agreement. During a circuit court hearing on the progress of the parties' negotiations on August 27, DTU offered to accept school board language on two issues, grade reporting and court or jury duty. No further negotiations were held after September 9. A final package offer was made to DTU which was essentially the same package offer of August 21 with the exception of the transfer/discipline and discharge proposal and with a retroactive effective date of July 1. When this package was offered on September 9, the Respondent was at the same time rejecting the special master's report in toto. As stated, in its answer, Respondent takes the position that it has not refused or failed to bargain collectively in good faith in that the items listed in the Acting General Counsel's complaint are items which are vested in Respondent by Chapter 230, Florida Statutes and Section 447.209, Florida Statutes and it is therefore precluded as a matter of law from negotiating said items. Section 447.209, F.S., gives public employers the right to unilaterally determine the purpose of its constituent agencies, to set standards, to exercise control, to take disciplinary action for cause and to relieve employees from duty due to lack of work or for other legitimate reasons. That statute goes on to read that employees aren't precluded from raising grievances where decisions have the practical consequence of violating terms and conditions of any collective bargaining agreement in force or any civil or career service regulation. It seems glaringly apparent therefore that the legislature foresaw instances wherein public employers and employee organizations would reach agreements on the very matters on which Respondent would urge that it has no obligation to include or bargain about. Collective bargaining as defined in the Public Employees Relations Act, Section 447.203(14) is: "the performance of the mutual obligations of the public employer and the bargaining agent of the employee organization to meet at reasonable times, to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employement, except that neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this part". The undersigned could find no Florida cases in which this issue had been decided, however there are numerous federal and state cases in other jurisdictions in which collective bargaining has been defined by judicial and other administrative bodies. Section 447.203(14), F.S., is strikingly similar to Section 8(d) of the National Labor Relations Act, 29 U.S.C. 151, et-seq. Respondent does not dispute the fact that it approached the negotiation table with a fixed and preconceived determination on its part to never reach agreement on those issues listed in the complaint filed herein. It maintained this position in the negotiations without doing anymore than listen to Union arguments on those points and by so doing it engaged in surface bargaining on those as well as other issues, without any attempt to explore the arguments thereon with a sincere desire to reach agreement on them. Court decisions too numerous to cite here have stated that "good faith bargaining takes more than mere surface bargaining or "shadow-boxing to a draw" or "giving the union a run around while purporting to be meeting with the union for the purpose of collective bargaining". On the subjects listed in the complaint, it is patent that by the third negotiating session, the Union had brought out and repeated all its main arguments for those subjects. Throughout the sessions, Respondent stood fast on its position that it would never include those subjects into a collective bargaining agreement. Its position on this had hardened even at the outset of the negotiations when it maintained that it had customarily appended said subjects to the collective bargaining agreement such that they would not be subjected to the grievance arbitration provision of the collective bargaining agreement and further that those items were among those rights exclusively vested to it by Section 447.209, F.S. Respondent maintains that it released information to the public through its agent which was an exercise of its right of free speech pursuant to Section 447.501(3), Florida Statutes, and/or that it was its legal duty imposed on it by Chapter 119, Florida Statutes. The Respondent apparently overlooked the fact that the employee organization (the Charging Party here) is certified to be the exclusive bargaining agent for purposes of bargaining. This means of course, that as agent for unit employees, it is charged with the responsibility of negotiating with the public employer in an attempt to reach agreement on all matters affecting wages, hours and other terms and conditions of employment. This also means that Respondent is obliged to do more than merely listen to the various proposals advanced without any attempt or effort to reach an agreement on basic terms which are customarily included within collective bargaining agreements. As previously stated, the Act does not require concessions by either side during bargaining nor the surrender of convictions of alterations of philosophies, provided such convictions or philosophies are not made operative in such manner as to foreclose bona fide consideration of bargainable issues. Duro Fittings Company, 121 N.L.R.B. 377, 383. Throughout these sessions, DTU was repeatedly rebuffed on minor problems such as establishing an agenda and obtaining agreement for future negotiating sessions. Respondent maintained its stand on all the items alleged by it as "nonnegotiable" which left the Union in a situation wherein, in order to make any movement, it was forced to submit counters to its own proposals without any movement on management's part. The failure on management's part to submit any counter proposals on those items lends support for an inference that they were not bargaining in good faith. Further support for this inference lies in the fact that Respondent publicly denounced the DTU's chief negotiator as a hired gun and as a person who wanted to pick the pocket of the taxpayers and by publicly releasing to the press items which the employees' exclusive bargaining representative had been repeatedly pressing for at the negotiating table. I recognize it is not usually the obligation of the employer to make suggestions when it takes a position and maintains it in good faith, and that refusal by an employer to aid a Union by acceding is not sufficient, standing alone, to permit an imputation of an intent to frustrate final agreement. This is true only if the refusal is supported by reasons of substance which are advanced in good faith and to further legitimate business interests, while indicating that it still maintained an open mind on the issue. Hence, where the Union had displayed a disposition to be flexible and make concessions on the deadlock issues and Respondent itself indicated publicly to the unit employees that it had in mind a possible raise for them, it was incumbent upon Respondent, as evidence of its good faith, to broach the alternatives formally to the Union immediately after, if not before, said information was released to the press, especially when the Union questioned its stand, if it was at all sincere in its desire to resolve those issues in an effort to reach a final agreement. Also the thrust of the article released to the press which in essence indicated that the Union had lost a 6.25 percent raise because their Union forced negotiators to an impasse, while failing to advise the Union even after the details of such had been released to the press, strongly indicated that the Respondent was treating the Union, not as a certified bargaining agent of the workers, but as an interloper seeking to gain some advantage for itself, in any dealing between Respondent and its employees. This attitude ignored the fact that Respondent was in fact and in law dealing with the employees themselves, when it talked to the Union as their bargaining agent. This is strong indication of bad faith bargaining, for in effect Respondent was announcing to the employees, during and after bargaining, that while it would give them benefits as workers it would not consider a grant of certain benefits, because they were asking for them through their bargaining agent. See for example Kayser-Roth Hosiery Company, 176 N.L.R.B. 999, 1000, 1001. Considering the totality of its conduct vis-a-vis the employees and their chosen agent before, during and after the negotiations, I am constrained to conclude that Respondent's standing attitude of hostility toward the Union, including its blunt threats against the bargaining team's members, pervaded and controlled its attitude in bargaining and its adamant opposition to those subjects was the primary cause of the impasse reached. In this respect, Respondent failed to meet its obligation to bargain in good faith with the Union in violation of 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining appears in its dealing with the press when it released the fact that the union had been instrumental in losing a 6.25 percent raise because it (the Union) forced negotiations to an impasse while knowing that it had never offered such to the Union and when requested for such proposals, it initially denied that it existed and after repeated requests only grudgingly released such. The same is true with respect to the failure to submit to the DTU's negotiating team a list of items which Respondent labeled "nonnegotiable" by its taking the position initially that no such list existed and after repeated requests to find out if such a list existed, the Respondent belatedly released such to the DTU's team. The Respondent's contention that its purpose in issuing the letter to the press was not to make a proposal but to (a) avert a strike and (b) to allow the Union a face saving means of returning to the bargaining table is unpersuasive and is regarded by the undersigned as incredible in view of the entire course of conduct by the Respondent's team throughout the negotiating process. This was further clear indication of surface" or "sham" bargaining in bad faith in violation of the Act. 2/ The evidence indicates that on at least two occasions after the information had been released to the public, Respondent refused to grant those releases to the DTU's team at the negotiating table. I find that such conduct on the part of the Respondent is coercive in nature because, when stated in the terms released to the press without explanation, they tended to demonstrate to employees the futility of further negotiations on salaries, as well as an adamant and apparent unreasoning attitude on it, which is some evidence of bad faith bargaining. I find that Respondent thereby violated Chapter 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining is found in the fact that it refused to reduce and include in written form in its collective bargaining agreement, those items to which it reached agreement on. By engaging in such conduct, I find that the Respondent thereby engaged in unfair labor practices within the meaning of Section 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining lie in its insistence on agreeing to schedule sessions on a daily basis and by its refusal to discuss items which, although not on the agenda, were related and the only reason Respondent advanced for not discussing such items was based on that fact. At one session, when DTU attempted to discuss a non-agenda subject, management suggested that the session be adjourned for one hour and reconvene so that the additional non-agenda items could be placed on the agenda and discussed. In each case in which the Respondent is charged with having failed to satisfy its duty to bargain in good faith, the entire course of conduct at the bargaining table has to be judged and considered by the totality of the circumstances. The term good faith has been held to mean that parties must approach the bargaining table with an open mind and with the intent to reach agreement. See for example N.L.R.B. v. Herman Sausage Company, 275 F.2d 229 (CA5, 1960); N.L.R.B. v. Reed and Prince Manufacturing Company, 205 F.2d 131 (CAl, 1953). Turning to the outset of the negotiation process in this case, prior to the first session, Bates testified without contradiction that superintendent Sang publicly attacked him as Charging Party's national representative as a "hired gun" and a person who was seeking to "pick the pockets of the taxpayers". Concerning his memo of April 19, Kennedy testified that "this document reads like history written in the spring as to what occurred not". See General Counsel's Exhibit #7 received into evidence. As that exhibit reflects, Respondent seemed calculated and more concerned with establishing rules and creating other subterfuges by which it could refuse to bargain than it was with performing its obligation to bargain in good faith. For example, evidence reveals that bargaining did not commence until approximately five weeks after the DTU's initial request. The first session centered around clearing up a ground rules proposal which as the evidence reveals, were the previous years ground rules. It took more than two negotiating sessions to finalize ground rules. This pattern continued throughout the negotiating process and clearly evinces Respondent's strategy of putting form over substance. Management does not deny and in fact admits that it termed various subjects "nonnegotiable". However it urges that it would include such subjects as appendages to the collective bargaining agreement. By so doing, the enforceability of such appendages would indeed be questionable. Furthermore, Section 447.001, F.S., requires the parties to negotiate a grievance procedure which shall be final and binding on the parties. By appending traditional subjects of collective bargaining such as discipline and discharge to the collective bargaining agreement, the employer would obviate its obligation to submit any disciplinary action to the grievance machinery and the collective bargaining agreement and would make a nullity of the proviso to Section 447.209, F.S. Also, Section 447.309(5), F.S., provides in pertinent part that "any collective bargaining agreement ... shall contain all of the terms and conditions of employment of the employees in the bargaining unit The evidence clearly shows in this regard that Respondent, after having agreed on certain proposals, refused to put them in the collective bargaining agreement thereby obviating any obligation to grieve them by the grievance machinery. Without going through each of the subjects listed in the complaint, some discussion on some of the items is worthy of mention in this decision. The Respondent termed discipline and discharge, seniority, transfer, summer school assignment, student discipline and disruptive student policy nonnegotiable subjects. However it agreed to append such subjects to the collective bargaining agreement. It is ludicrous to even suggest that discipline, discharge, seniority and transfer are not matters which affect an employee's employment relationship. As the evidence indicates, Respondent has a rule which states that violations of its policies subject a teacher to disciplinary action including discharge. Thus, for example, if a teacher fails to discipline a student who is disruptive in a manner which, according to Respondent, violates its policy, said teacher is subject to disciplinary action which often may lead to discharge. Another subject, seniority, has been held by numerous jurisdictions to be a mandatory subject of bargaining in that it, among other things such as merit, determines which teachers are eligible for promotion to various positions which become vacant during the school term. This necessarily affect a teacher's employment conditions and is therefore a term and condition of employment within the meaning of Section 447.309, F.S. Additionally, numerous jurisdictions have held that the impact of a managerial decision on terms and conditions of employment is a mandatorily negotiable subject. See for example, West Irondequoit Teachers Association v. Helsby, 315 N.E. 2d 775(Ct of App., 1974). Based on the foregoing, and by offering only the prior contract language as its counter proposals on the vast majority of issues, by refusing to tie logically related issues together in negotiations, by unreasonably delaying discussion on money issues, by attempting to denigrate the DTU's representative in the press and by attempting to deal directly with the employees and thereby bypassing the employees designated exclusive bargaining representative, and by unreasonably delaying discussion on money issues, Respondent effectively refused to bargain throughout the entire course of negotiations. Based on the above conduct and in light of Respondent's continual insistence on appending agreed upon proposals to the collective bargaining agreement and thereby avoiding the enforceability thereof by arbitration, Respondent thereby violated Section 447.501(1)(a) and (c), F.S.
Recommendation Having found that the Respondent has refused to bargain collectively in good faith with the Union as found above, I shall therefore recommend that it take the following action, which is necessary to effectuate the policies of the Act: Upon request, bargain collectively in good faith with the above-named union as the exclusive bargaining representative of all employees in the appropriate unit described above and, if an understanding is reached, embody such understanding in a signed agreement and recognize and deal with said union as such exclusive bargaining agent. DONE and ENTERED this 22nd day of November, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, what action, if any, should be taken against Respondent.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. Respondent Respondent began working for the School Board approximately 12 years ago. He is presently under suspension pending the outcome of this disciplinary proceeding. For the duration of his employment with the School Board, he has done roofing work. He was hired as a Roofer II, was subsequently promoted to a Roofing Foreperson position, and then took a voluntary demotion back to a Roofer II position, the position he currently occupies. The School Board's job description for Roofer II provides, in pertinent part, as follows: BASIC OBJECTIVES The Roofer II (journey person) will work independently under the guidance of a foreperson or other supervisory personnel and in accordance with the standard practices of the roofing trade. Journey person level work includes, but is not limited to: installing, altering, maintaining and repairing all hot and/or cold roofing systems and their related components; using knowledge and experience of the trade to determine a method or to devise a means to accomplish the assigned job; and interpreting technical data from sketches, blueprints, schematics and service manuals. . . . PHYSICAL REQUIREMENTS This is very heavy work which requires the following physical activities: climbing, balancing, bending, stooping, kneeling, crouching, twisting, reaching, standing, walking, pushing, pulling, lifting, finger dexterity, grasping, repetitive motions, talking, hearing, and visual acuity. The worker is exposed to heat, noise, hazards, atmospheric conditions and oils. The work is performed outdoors. MINIMUM QUALIFICATION REQUIREMENTS * * * 5. Possession of a valid CDL Class A (6331) or Class E (6056) driver's license. * * * NOTE: This is an Omnibus Transportation Employees Testing Act (OTETA) monitored position. Employees with this job description may be required to drive or road test a motor vehicle weighing over 26,000 pounds, transport 16 or more persons, or carry hazardous materials. At all times material to the instant case, Respondent was assigned to the School Board's South Central Maintenance Satellite (South Central). At all times material to the instant case, Robert Goldberg was the director of South Central. At all times material to the instant case, Berny Blanco was a Coordinator III at South Central and Respondent's immediate supervisor. The Collective Bargaining Agreement As a Roofer II employed by the School Board, Respondent is a member of a collective bargaining unit represented by the Dade County School Maintenance Employee Committee (DCSMEC) and covered by a collective bargaining agreement between the School Board and DCSMEC (DCSMEC Contract). Article XI of the DCSMEC Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled, "Notification." It provides, in pertinent part, as follows: Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. An informal discussion with the employee shall occur whenever the employee[']s conduct or the nature and severity of the alleged infraction/violation does not warrant formal disciplinary action. Section 2 of Article XI is entitled, "Types of Separation." It provides as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any of three distinct types of separation. Voluntary-- The employee initiates the separation by resigning, retiring, abandoning the position, or other unilateral action by the employee. Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays, where such absence is not reported as prescribed by bureau/office procedures, shall be evidence of abandonment of position. Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for which the School Board may terminate employment. Absences due to emergencies, or circumstances beyond the employee's control, will be given full consideration. An employee recommended for termination under this provision shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after first being notified by the Office of Professional Standards. Dismissals, Suspensions, Demotions-- Employees dismissed, suspended, or demoted shall be entitled to appeal such action to an impartial hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. (The employee shall have 20 calendar days in which to notify the School Board Clerk, in writing, of the employee's intent to appeal such action.) Failure to request a hearing for appeal of disciplinary action in the manner prescribed herein shall be deemed a waiver of rights to any such hearing. The Board shall provide for an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. All such proceedings shall be conducted in accordance with School Board Rule 6Gx13-8C- 1.64. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and demotions. If the employee is not employed or has had a reduction in salary during the time of appeal of such dismissal, suspension, or demotion, and if reinstated by Board action, the employee shall receive payment for the days not worked, or salary not received, and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or demotion. Section 4 of Article XI is entitled, "Cause for Suspension." It provides as follows: In those case where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. School Board "[R]ule[s], [R]egulation[s], [and] [P]olic[ies]" As a School Board employee, Respondent is obligated to act in accordance with School Board "rule[s] regulation[s], [and] [p]olic[ies]" and, if he does not, he may be disciplined in accordance with the DCSMEC Contract. Among the School Board's rules are School Board Rule 6Gx13-4A-1.21 and School Board Rule 6Gx13-4E-1.01. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. . . . School Board Rule 6Gx13-4E-1.01 addresses the subject of "[a]bsences and [l]eaves." It provides, in pertinent part, that, "[e]xcept for sudden illness or emergency situations, any employee who is absent without prior approval shall be deemed to have been willfully absent without leave." Pre-2001-2002 Regular School Year Warnings and Conferences-for- the-Record Regarding Respondent's Attendance and Leave On December 13, 2000, in response to Respondent having been absent without authorization a total of three and a half days since the beginning of the previous month, Mr. Blanco sent a memorandum to Respondent, which read as follows: SUBJECT: Notice of Performance Expectation/Requirement Consider this notice a reminder of the importance of your performance expectation in the area of attendance. A review of the most recent Leave Without Pay (LWOP) Report indicates that you have accumulated three and one half (3.5) days (11/2/00- 1 day, 12/4/00- 1 day, 12/7/00- 1/2 day, 12/1/00- 1/2 day and 12/12/00 1/2 day) of unauthorized leave without pay (ULWOP) during the previous twelve months. Be advised that Article XI, Section 2-A.2 of the Bargaining [A]greement between the School Board of Miami-Dade County and Dade County School Maintenance Employee Committee (DCSMEC) states that " . . . Unauthorized absences totaling five or more workdays during the previous 12-month period shall be evidence of excessive absenteeism . . . shall constitute grounds for which the School Board may terminate employment . . ." This provision serves to insure the required job performance, and prevent any unnecessary impact on other staff members and contributes to the effective operation of this department. Your unauthorized absences adversely impact this department's ability to provide timely service. When you fail to report to work, the projects you are assigned are disrupted and must be either rescheduled or reassigned to other staff members. This in turn causes them to disrupt their work schedules to perform your assignment. In conclusion, you are hereby warned that should you continue to accumulate ULWOP's, appropriate disciplinary action will be taken. Respondent signed the memorandum, acknowledging his receipt thereof. On that same date (December 13, 2000), Mr. Goldberg formally referred Respondent to the School Board's Employee Assistance Program (EAP) based upon, among other things, Respondent's "excessive absences"; his "unauthorized absences"; and his "absences on Monday[s] and/or Fridays." Despite the School Board's efforts to help him, Respondent continued to have attendance problems, which adversely impacted South Central's maintenance operations. For example, he was absent without authorization on July 9, 10, 11, 12, 13 and 18, 2001. On August 7, 2001, Mr. Goldberg held a Conference-for- the-Record with Respondent to discuss Respondent's "excessive absences" and "performance-related issues." Mr. Goldberg subsequently prepared and furnished to Respondent a memorandum, dated August 28, 2001, in which he summarized what had transpired at the conference and indicated what actions Respondent needed to take in the future. Mr. Goldberg's memorandum read as follows: A conference for the record was held on Tuesday, August 7, 2001. In attendance at this conference were Dr. James Monroe, Executive Director, Maintenance Employment Standards, Mr. Berny Blanco, Coordinator, South Central Satellite, Mr. George Ellis, DCSMEC, Representative, yourself, and this administrator. Your employment history indicates that you were first employed in December of 1990 as a Roofer II, Maintenance Operations South Central Satellite. I verified that your home address is: . . . . The purpose of this Conference was to address your excessive absenteeism: nine and one half unauthorized absences, which you have accumulated in the past twelve months. Also discussed were performance- related issues and the adverse effect your unsatisfactory performance has on your employment status as a Maintenance Operations Employee. You were on unauthorized leave on the following days: July 9, 10, 11, 12, 13, 18, 2001, December 4, and 7(.5), 2000, November 2, 2000, October 23(.5), 18(.5). You were given a written warning for attendance in December 2000 when you accumulated three and one half absences without authorization. You were previously referred to the District's Support agency on two separate occasions, and you declined to avail yourself of this service. You will again be administratively referred to this agency. You are directed to: To be in regular attendance. If in the event of further abs[ences], you are to contact Mr. Blanco or in his place Mr. Louis Martinez. If your absences are due to illness, immediately upon your return to duty, you must submit a note from your treating physician. Failure to comply will result in the absence being recorded as leave without pay, unauthorized (LWOP). To honor the workday by arriving on time. You submitted the attached letter dated August 1, 2001 requesting a career redirection back to [a] Roofing Journeyperson position. Dr. Monroe and I indicated that we would recommend to Mr. Woodson that this request be accepted and you be placed in a Journeyperson's position effective immediately. It was explained to you that this request does not relieve you of your responsibility to improve your attendance nor does it allow you to interfere with the daily operation of the roofing crew under the supervision of an acting or temporary foreperson. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference summary, and to have any such response appended to this document. Respondent signed the memorandum, acknowledging his receipt thereof. Respondent's request to be placed back in a Roofing II position was granted. In a further attempt to assist Respondent to become a more productive employee, the School Board again referred him to the EAP. The 2001-2002 School Year The School Board's efforts to help Respondent were unavailing. Respondent's poor attendance persisted. Moreover, contrary to the instructions he had been given, he failed to notify supervisory personnel of his absences. Not having "heard from [Respondent]," who had been absent without authorization for an extended period of time, Mr. Goldberg, on October 15, 2001, sent the following memorandum, by certified mail, return receipt requested, to Respondent's residence: SUBJECT: EMPLOYMENT INTENTION Please be advised that you have been absent from the worksite on the following days: 9/14/01, 9/17/01, 9/18/01, 9/19/01, 9/20/01, 9/21/01, 9/24/01, 9/25/01, 9/26/01, 9/27/01, 9/28/01, 10/1/01, 10/2/01, 10/3/01, 10/4/01, 10/5/01, 10/8/01, 10/9/01, 10/10/01, 10/11/01 Because these absences have caused . . . __x__ effective operation of the worksite to be impeded . . . I am requesting your immediate review and implementation of any of the following options. Notify the worksite or your intended date of return; Effect leave procedures (request for leave form attached); Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. Respondent failed to comply with the directives contained in this memorandum; however, he did attend a meeting on October 23, 2001, at which his "leave history for the past 12 months was presented to [him] and reviewed with [him]." During this 12-month period, Respondent was absent a total of 83.5 days, 40.5 of which he was absent without authorization. Respondent attended a Conference for-the Record held on November 7, 2001, in the School Board's Office of Professional Standards. Also in attendance at the conference were Renaldo Benitez, the Executive Director of the Office of Professional Standards; Dr. James Monroe, the Executive Director of Facilities Operations; Mr. Goldberg; and a DCSMEC representative. The conference was held to address Respondent's "performance assessments-to-date; attendance-to-date; non- compliance with site directives regarding attendance; and . . . future employment status with the Miami-Dade County Public Schools." On November 13, 2001, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You have exceeded the number of days accrued and have failed to follow directives and reminders issued to you at your worksite in reference to your excessive absenteeism. You were provided an opportunity to respond and you said: "I was out on back injury and knee surgery. I thought that the worksite would grant me authorized leave. I knew it would be leave without pay, but not unauthorized. I provided all the doctor's notes to Mr. Goldberg." This administrator told you that if that was the case, you should have effected a medical leave with the leave office. You said, "I didn't know anything about the leave office. I was not aware of those procedures." Dr. Monroe asked you if you were in possession of your Maintenance Employee Handbook, which includes procedures to effect leave and you said, "Yes, I did not read the employee book and that is my fault." Mr. Goldberg showed you the employee intention letter sent to you on October 15, 2001, which you admitted having received, and pointed out that one of the options is for you to implement leave procedures and a Request for Leave Form was attached. You said, "I did get the letter, but there was no form attached." This administrator asked you if you had attempted to contact your union and seek advice from them and you said, "No." You also said: "I just went through a divorce. I don't want to be a bad employee. I have tried to see Mr. Abin with the District's support referral services. He just has not been able to see me. I want to participate." You provided a note from your physician, Dr. Nancy L. Erickson, releasing you for full duty and restricting you to only wearing a knee support. Dr. Monroe said, "This note is satisfactory, but you have to be in attendance and on time every day. It is very important for you to schedule any pending doctor's appointments after work hours because of the large number of absences you have amassed." This administrator reminded you that 40.5 days of leave without pay unauthorized within the last 12 months is more than excessive. According to contractual stipulations, "Unauthorized absences totaling more than five or more workdays during the previous 12 month period shall be evidence of excessive absenteeism." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with Miami- Dade County Public Schools. You said, "No. sir." The following directives were issued to you during the conference concerning your future absences: Be in regular attendance and on time. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact on the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference you were provided with a copy of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties/Employee Conduct and 6Gx13-4E-1.01, Absences and Leaves. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference, to assume your duties. . . . Please be aware of your right to clarity, explain, and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record. The "note from . . . Dr. Nancy L. Erickson" that Respondent submitted during the conference was a forgery. It read as follows: To whom it may concern: I apologize. Mr. Kepler's rehabililative [sic] therapy completion date was incorrect. The correct date in [sic] November 1st. He kept his appointment with me on October 31st which was the completion of his therapy. He is released for full duty and only restriction is to wear knee support. The second sentence of the note referred to a previous note that Dr. Erickson had purportedly written. This previous note, which had been sent, by facsimile transmission, to Mr. Goldberg, was also a forgery. It read as follows: October 16, 2001 Re: Charles Kepler To Whom It May Concern: Mr. Charles Kepler has been under my care for an injury to his left knee. Mr. Kepler has been under going [sic] rehabilitative physical therapy which he will complete the end of this week. Mr. Kepler is released to return to work on Monday October 22, 2001. Respondent was a patient of Dr. Erickson's, but the last time he had seen her was March 29, 2001, and he had only received treatment from her for back pain, not for any knee problems. Mr. Goldberg received other notes concerning Respondent's physical condition and medical needs, in addition to the two mentioned above, purporting to be from Dr. Erickson that were also forgeries. While he may have had the assistance of others, Respondent was the driving force behind this scheme to defraud the School Board through the submission of forged doctor's notes. 2/ Following the November 7, 2001, Conference-for-Record, Respondent continued his "pattern of excessive absenteeism and . . . violation of . . . attendance procedures," which prompted Mr. Goldberg to recommend, in writing, that Respondent be fired. Mr. Goldberg's written recommendation, which was dated November 30, 2001, read, in pertinent part, as follows: I hereby recommend that Mr. Charles Kepler be terminated from his employment with the Miami-Dade County School District Maintenance Operations, South Central Satellite. Mr. Kepler has a continuing pattern or excessive absenteeism and has recurring violations of Maintenance and Operations attendance procedures. He has failed to comply with School Board rules, responsibilities and duties even after he was given specific instructions and directives regarding future absences. * * * On November 26, 2001, he requested one-day sick leave but only had 1/2 day available leave. On November 29 and 30, 2001, he again called in for sick leave with no available time. He never personally notified Mr. Blanco or this administrator of this request for leave time. On three separate occasions, Mr. Kepler was referred to the District Support Agency. He declined to avail himself of its service on every occasion. . . . No immediate action was taken on Mr. Goldberg's recommendation. Respondent was absent without authorization on December 10, 12, 13, 18, 19, 20, 21, 27, 28 and 31, 2001, January 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 21, 22, 23, 24, 25, 28, 29, 30 and 31, 2002, and February 1 and 4, 2002. On February 4, 2002, Mr. Goldberg sent a memorandum, by certified mail, return receipt requested, to Respondent's residence containing the following instructions: I am requesting your immediate review and implementation of any of the following options: Notify the worksite of your intended date of return; Implement resignation from Miami-Dade County Public Schools (resignation letter attached); Implement retirement process (if applicable). You are directed to notify the worksite in writing within 3 days of the date of this memorandum as to your employment intention. Your absences will be considered unauthorized until you communicate directly with this administrator. On or about February 7, 2002, Mr. Goldberg received the following letter from Respondent: This is to inform you that I will be returning to work on Feb. 11, 2002. I will be completing my therapy for my knee on Feb. 9, 2002. I will bring a release from the doctor and she will fax you one. Her assistant has been faxing you updates every week. I will be moving this weekend; my new address is . . . and my new phone number is . . . . If there are any changes with my injury I will contact you Friday after therapy. Respondent did not report to work on February 11, 2002, or at any time thereafter, and he failed to comply with the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." (On numerous occasions, Mr. Goldberg telephoned Respondent's residence in an effort to "contact [Respondent] directly," but he was never able to reach Respondent.) During the week of February 11, 2002, and the several weeks that followed, Mr. Goldberg received, by facsimile transmission, notes, purportedly signed by Dr. Erickson, concerning Respondent's physical ability to report to work. Mr. Goldberg, suspecting (correctly) that the notes might not be genuine, contacted Dr. Erickson's office by telephone and, in response to the inquiries he made, was told that the last contact Dr. Erickson had with Respondent was in late March of 2001. Following this telephone conversation, Mr. Goldberg referred the matter to the School Board's Police Department for investigation. The investigation was conducted by Detective Richard Robinson. After completing his investigation, Detective Robinson issued a written report (Investigative Report G-13852) on May 1, 2002, which contained the following accurate conclusion: Based on statements and evidence gathered during this investigative process, there is sufficient evidence to prove between the dates of July 25, 2002, Mr. Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents stating his inability to return to work, due to an injury. During an interview with Mr. Kepler's physician, Dr. Nancy Erickson, it was confirmed that the physician notes faxed to Mr. Goldberg from Mr. Kepler, and allegedly signed by Dr. Erickson, were forged. Dr. Erickson stated she has not seen Mr. Kepler since March 29, 2001. The allegation of the Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, against employee, Mr. Kepler, Jr., is Substantiated. From November 7, 2001, the date of the last Conference-for-the-Record, to May 23, 2002, Respondent was absent a total of 122 days. All but one of these absences were unauthorized. Respondent repeatedly disregarded the directive he had been given to "communicate[] directly to Mr. Goldberg" his "intent to be absent." Sometime prior to May 31, 2002, Mr. Goldberg learned that Respondent's driver's license had been suspended since December 31, 2001 (as a result of Respondent being arrested for driving under the influence) and that therefore Respondent no longer (and had not since December 31, 2001) met the minimum qualifications to be a Roofer II. Respondent attended a Conference-for-the Record held on May 31, 2002, in the School Board's Office of Professional Standards. Also in attendance at the conference were Mr. Benitez, Mr. Goldberg, and representatives of DCSMEC. The conference was held "to address Investigative Report G-13852 . . . ; [Respondent's] record; and [his] "future employment status with the Miami-Dade County Public Schools." On June 17, 2002, Mr. Benitez prepared a summary of what had transpired at the conference. The summary, a copy of which was provided to Respondent, read, in pertinent part as follows: You were provided an opportunity to respond to your excessive absences and your suspended driver's license. You said, "I was sick. I could not bend my knees, but I still called the tape. My driver's license is suspended, but I'm not guilty. That's why I'm fighting it. I'm in the process of clearing all this up." Mr. Goldberg said, "The directives that you were given were specific, that is, to contact me and not to call the tape. Furthermore, your job requires you to have a valid driver's license in order to perform your duties. You need to take care of your driver's license and submit a letter from your doctor that you can return to work without any restrictions." Investigative Report- G-13852, Violation of School Board Rule 6Gx13-4A-1.21, Responsibilities- Substantiated A copy of the aforementioned investigative report was presented to and reviewed with you in its entirety. You were provided an opportunity to respond to the allegation that: "Between July 25, 2001 and February 25, 2002, Employee Charles Kepler, Jr., Roofer II at South Central Maintenance Satellite, allegedly submitted forged documents, stating his inability to report to work, due to injury." You said, "I did not submit anything forged. Everything came from her office as far as I know. I have never forged any doctor's letter." This administrator asked, "Why were these medical notes faxed from a different medical center and some even had misspellings." You said, "I don't know. It was the girl in the office that wrote them." I reminded you that Dr. Nancy L. Erickson, O., is an anesthesiologist and she stated that she has only seen you three times. You said, "That's because they don't want to deal with me anymore. The other doctor that she sent me to was afraid that I would sue him." I asked you again if any of these notes were false and you said, "No." Mr. Bell [a DCSMEC representative] said, "He will submit documentation of his knee surgery." Action Taken You were advised of the availability of services from the District's support referral agency. You were provided the option to resign your position with M-DCPS. You said, "No, sir." Should you return to work, the following directives were re-issued to you during the conference concerning future absences: Be in regular attendance. Intent to be absent must be communicated directly to Mr. Goldberg. If it is determined that future absences are imminent, leave must be considered and procedures for Board-approved leave implemented. Resignation must be tendered if no leave options are available. Should future absences exceed the number of days accrued, the absences will be considered Leave Without Pay, Unauthorized (LWOU). You must advise Mr. Goldberg in advance of any doctor's appointments and try to schedule them after working hours. In addition, the following directives herein delineated were also issued to you during the conference: Adhere to all (M-DCPS) School Board Rules and regulations at all times. Do not forge any documents related to your employment with M-DCPS. Do not submit any forged documents for any reason to M-DCPS. Pending further review of this case and formal notification of the recommended action or disciplinary measures to be taken, these directives are reiterated and will be implemented immediately to prevent adverse impact to the operation of the work unit, as well as to insure continuity of the program. Noncompliance with these directives will necessitate review by the Office of Professional Standards for the imposition of action. During the conference, you were provided with a copy of School Board Rule[] 6Gx13-4A- 1.21, Responsibilities and Duties/Employee Conduct. You were advised of the high esteem in which M-DCPS employees are held and of the District's concern for any behavior which adversely affects this level of professionalism. Mr. Goldberg was apprised as to your return to the worksite immediately after this conference to assume your duties. You were advised to keep this information presented in this conference confidential and not discuss this with co- workers. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Assistant Superintendent in the Office of Professional Standards, the Chief Facilities Officer of Maintenance, and the Director of South Central Satellite. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of legal review with the endorsement by the Chief Facilities Officer of Maintenance will compel formal notification of the recommended action or disciplinary measures to include dismissal. Please be aware of your right to clarify, explain, and/or respond to any information recorded in this conference by this summary, and to have any response appended to your record. Respondent did not provide supervisory personnel with proof that his driver's license had been reinstated, nor did he "submit a letter from [his] doctor that [he] c[ould] return to work without any restrictions," as he had been instructed to. He remained out of work, accumulating additional unauthorized absences. On June 23, 2002, Respondent attended a meeting in the Office of Professional Standards, along with Mr. Benitez and Mr. Goldberg, at which he was advised of the following: A legal review of the case file and the summary information determined that you, Mr. Charles M. Kepler, be recommended for dismissal for the following charges: Just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. On August 9, 2002, Merrett Stierheim, the School Board's Superintendent of Schools, sent Respondent the following letter: I am exercising my responsibility as Superintendent of Schools and recommending to The School Board of Miami-Dade County, Florida, at its scheduled meeting of August 21, 2002, that the School Board suspend you and initiate dismissal proceedings against you from your current position as Roofer II at South Central Maintenance effective at the close of the workday, August 21, 2002, for just cause, including, but not limited to: excessive absenteeism; abandonment of position; conduct unbecoming a School Board employee; non-performance and deficient performance of job responsibilities; gross insubordination; and violation of School Board Rules 6Gx13-4A-1.21, Responsibilities and Duties; and 6Gx13-4E-1.01, Absences and Leaves. This action is taken in accordance with Sections 230.03(2); 230.23(5)(f); 231.3605; 231.44; and 447.209. If you wish to contest your suspension and dismissal, you must request a hearing in writing within 20 calendar days of the receipt of notice of the Board action, in which case, formal charges will be filed and a hearing will be held before an administrative law judge. At its August 21, 2002, meeting, the School Board took the action recommended by Mr. Stierheim. At no time from May 23, 2002, until the date of his suspension did Respondent report to work. All of his absences during this period were unauthorized. Although Respondent had accumulated an extraordinary number of unauthorized absences at the time of his suspension, the number would have been even greater had Mr. Goldberg not "worked with [Respondent]" and converted some absences, which were initially unauthorized, to "vacation or sick days when [Mr. Goldberg] could" (following his review of medical documentation belatedly provided by Respondent).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating his employment with the School Board pursuant Article XI of the DCSMEC Contract. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 26th day of February, 2003.
The Issue Whether the refusal by the Respondent District School Board of Madison County to sign a contract prepared by a representative of the Madison County Education Association after a meeting of the Parties held for the purpose of reaching a collective bargaining agreement on November 18, 1975 was an unfair labor practice.
Findings Of Fact The Madison County Education Association was recognized by the District School Board of Madison County as exclusive bargaining agent for a unit of instructional employees of Madison County Schools on April 1, 1975. Formal negotiations for the purpose of reaching a collective bargaining agreement commenced on or about July 3, 1975. An impasse was reached on or about August 1, 1975 and the controversy was submitted to a special master under Section 447.403, Florida Statutes. A Special Master, Marvin A. Griffin, was appointed by Curtis L. Mack, Chairman, Public Employees Relations Commission, "to investigate the disagreement between the Madison County School Board and the Madison County Teachers Association." After a hearing on August 29, 1975 and September 12, 1975, Mr. Griffin filed a report dated September 26, 1975. He then offered to write a synthesized agreement and presented a draft of an agreement (hereinafter designated Contract 1) entitled "Agreement between Madison County Education Association and District School Board of Madison County, Madison, Florida, October 1, 1975." The Superintendent of Public Instruction, Gene Stokes, formally rejected the Special Master's recommendations concerning a number of articles in the agreement and made recommendations on disputed items in the Special Master's report. The District School Board of Madison County met with the Madison County Education Association and the School superintendent on November 13, 1975, at which meeting the School superintendent and the Teachers Association explained their positions. No final action was taken, and the item was tabled until November 18, 1975. At the meeting on November 18, 1975, the proposed agreement of the Special Master was modified by the superintendent's recommendation and was further modified by a Motion of school board member Eugene P. Bowie to Article XVII. (TR. 44) The agreement as modified was not reduced to writing at the meeting on November 18, 1975. The President of the Teachers Association, Florise Whittemore, used the special Master's agreement and her notes and reduced the agreement to writing (hereinafter called Contract 2 ), as she had understood the agreement. After the agreement was typed, it was presented to the teachers on November 25, 1976 and ratified by them. The pertinent portion of the official minutes of District School Board of Madison County adopted at its regular meeting, December 1975, reads: "Article XVII, $500 increase in base pay for each teacher." An unsigned copy of the contract prepared by Mrs. Whittemore was delivered to school Board Member Pickles through his daughter. A copy was also delivered to Mr. Bowie in person. A signed copy was delivered in December to the Chairman of the School Board and the negotiator Lloyd Day. Upon presentation of the contract agreement as drafted by the Madison County Education Association, member Albert W. Waldrep refused to sign the contract contending that the interpretation as shown in the teachers contract of the Motion by School Board member Bowie was in error. Member Bowie meant by his Motion that the raise should be from June 30, 1975 and Member Albert W. Waldrep understood that Member Bowie's Motion meant from November 1, 1975. Respondent then instructed its attorney to redraft the provisions of the contract pertaining to salary and said redraft (hereinafter called Contract 3) was adopted by the Respondent and signed by Chairman C. W. Pickles and attested to by Gene Stokes, Superintendent. The Charging Party refused to accept Contract 3 as redrafted by Respondent. The Charging Party thereafter filed an unfair labor charge which resulted in a formal Complaint and Notice of Hearing being issued by Public Employees Relations Commission on April 21, 1976. The Hearing Officer further finds: The Motion by Member Bowie relative to the dispute in this cause was voice recorded "Here I recommend a $500 raise per year for each teacher." It was amended by Member Pickles and concurred in by Mr. Bowie to state "base pay" and then seconded by Mr. Pickles. There was no mention of what date the raise was to be effective. There was no discussion of "retroactive pay" or "bonus pay", although the pay increase as intended by Member Bowie would have involved an increase of $150 per month for each of the three months of July, August and September. Member Bowie, cognizant of Contract 1 and prior negotiations, meant the raise to begin June 30, 1975. His Motion was intended to encompass Contract 1 as submitted by the Special Master and recommended by Superintendent Stokes. Mr. Waldrep, cognizant of the prohibition against retroactive pay and the shortage of funds, believed that he voted for a raise beginning November 1, 1975. Teacher salary checks for July, August and September, 1975, had been cut prior to the November 1975 Meeting. The words of the Motion "Here I recommend $500 raise per year for each teacher" together with the amendment or clarification "base pay" does not speak to the point in controversy and is consistent with either an interpretation to mean "fiscal year" or "calendar year." The contract as rewritten, typed and submitted to the members of the School Board [designated Contract 2] was the understanding of the Madison County Education Association of an agreement reached by the Parties at the November 18, 1975 meeting. The contract as rewritten, typed and submitted to the teachers [designated Contract 3] was the understanding of a majority of the five-member District School Board of Madison County of an agreement reached by the Parties at the November 18, 1975 meeting. There was no final agreement between the Parties as to the disputed salary increase effective date. After the November 18, 1975 meeting, Contract 2 was written by the Charging Party without the aid of the Respondent. It reflected an interpretation of the Motion most favorable to Charging Party's financial interests. After the November 18, 1975 meeting, Contract 3 was written by the Respondent without the aid of the Charging Party. It reflected an interpretation of the Motion most favorable to Respondent's financial interests. The facts of the cause do not reflect an unfair labor practice under Section 447.501, F.S., for the reason that the refusal by the parties to sign either Contract II or Contract III was based on the fact that no final agreement had been reached on the disputed issues at the collective bargaining meeting of November 18, 1975.
Recommendation Dismiss the complaint. DONE and ENTERED this 15th day of October, 1976, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Leonard Carson, Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301 Edwin B. Browning, Esquire Post Office Drawer 652 Madison, Florida 32340 R. T. Donelan, Jr., Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Rod W. Smith, Esquire 2003 Apalachee Parkway Suite 300 Tallahassee, Florida 32301 Florise Whittemore, President Madison County Education Association Madison, Florida Tobias Simon, Esquire and Elizabeth deFresne, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
