The Issue Whether Petitioner is entitled to participate in an early retirement incentive program established by an amendment to the 1991-1994 Collective Bargaining Agreement between the School Board of Pinellas County and the Pinellas Classroom Teachers Association.
Findings Of Fact Petitioner, Barbara Bates, is presently employed by the Pinellas County School Board, serving as a guidance counselor at the 16th Street Middle School. The Pinellas Classroom Teachers Association (P.C.T.A.) is the exclusive bargaining agent for all teachers employed by the School Board of Pinellas County (Board). The term "teachers", as used in that context, includes full time guidance counselors. At all times relevant, there was in force a collective bargaining agreement between the Board and the P.C.T.A., effective 1991-1994. During the 1991-92 school year, the Board experienced severe losses in revenue, and had to prepare for substantial budget cut backs in 1992/93 fiscal/school year. Among the measures taken by the Board to reduce expenditures was a reduction in the number of instructional personnel. To keep the number of instructional personnel involuntarily terminated as small as possible, the P.C.T.A. and the Board negotiated modifications to the existing collective bargaining agreement between them, providing for extended leave options, shared teaching responsibilities and early retirement incentives. The modifications stated in pertinent part: "ARTICLE 1 These proposed amendments to the agreement are in effect for 1992-93 only and cannot be extended without the mutual agreement of the parties . . . ARTICLE XX - TERMINAL PAY The following language will be implemented as part of the current language in Article XX, Section B: "Employees who are eligible for and accept regular retirement at thirty (30) years of creditable FRS service . . . shall receive a cash incentive of $8,500 payable upon retirement . . . IN WITNESS WHEREOF the aforesaid parties have hereunto executed this Agreement on the 11th day of March, 1992, to be effective on the 1st day of July 1992." Said language was ratified by the Board on March 11, 1992, and was subsequently ratified by a vote of the membership of the P.C.T.A. The amount of $8,500, as a retirement incentive, was arrived at as the average amount the Board would have had to pay in unemployment benefits to laid off teachers, and it was determined that it would be preferable to pay that amount to an employee to obtain voluntary retirement rather than to pay it to a former employee who had been involuntarily laid off, or terminated due to budget cuts. It was the understanding of the parties (the Board and P.C.T.A.), that in order to achieve that desired result, the individuals exercising the retirement option would have to be retired by the start of the school year, 1992/93, or else the position occupied by the retiring teacher could not be filled with a teacher who would otherwise have been terminated or laid off. The approved policy manual of the Board provides that the school year calendar begins July 1 of one year and ends on June 30 of the following year. Barbara Bates is a guidance counselor employed full time by the Board, and is thus a member of the bargaining unit represented by the P.C.T.A. Barbara Bates does not currently have thirty (30) years of creditable service in the Florida Retirement System (FRS), but will attain such on January 29, 1993. On April 20, 1992, Barbara Bates submitted an application to retire to be effective when she did attain thirty years of creditable service, and to receive the $8,500 cash incentive. Petitioner's application to retire and receive the incentive was submitted in a timely fashion. Initially, no individual other than Barbara Bates employed by the Board who would have attained thirty (30) years of creditable service after the start of the 1992/93 school year actually applied for the $8,500 retirement incentive; however, a number of individuals inquired as to the possibility of retiring shortly after the start of the 1992/93 school year. In order to clarify the intent of the March 11, 1992 amendment to the collective bargaining agreement, and to increase the number of individuals for whom the $8,500 incentive would be available, the Board and the P.C.T.A. approved another amendment to the collective bargaining agreement which stated in part: ". . . 6. The parties to the agreement concur that the intent of the retirement incentive program is to create vacancies to avoid laying off teachers in August of 1992. To this end, eligibility for participation in this incentive was limited to those educators who met eligible requirements on or before June 30, 1992. Subsequent to the receipt of applications, a number of exceptions were requested by those who were close to the June 30 deadline. In an effort to accommodate these requests and still satisfy the intent of the parties to create vacancies prior to the opening of school in the fall, the parties mutually agreed that the following exceptions will be allowed to the original requirement of thirty years service or ten years of service and age 62 prior to June 30, 1992: Employees who are not yet 62, but are willing to accept the State imposed penalty of 5/12ths of 1% per month, provided their date of retirement is on or before June 30, 1992, or in the case of 235 day contract teachers the last day of their July, 1992 quinmester. Employees on 235 day contracts who wish to work until the end of the quinmester in July, and who meet eligibility criteria prior to the end of that quin. Employees who become qualified during the summer of 1992 or prior to November 1, who are willing to accept alternative assignments, and who are approved by the Superintendent or his designees and the president of the association or his designee, provided that the retirement date will be the earliest date upon which the employee satisfies the established eligibility, requirements, such dates not to extend beyond November 1, 1992."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application to participate in the early retirement incentive bonus program for the school year 1992 should be DENIED. DONE and ENTERED this 24th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1,2,3,4,5,6,7,8,11,12,13 Rejected: As against the greater weight of evidence: paragraphs 9,10,14 Proposed findings of fact submitted by Respondent. Accepted in substance: paragraphs 1-17 COPIES FURNISHED: Louis Kwall, Esquire GROSS & KWALL 133 North Fort Harrison Avenue Clearwater, Florida 34615 Bruce P. Taylor, Esquire Pinellas County School Board Largo Administration Building 301 Fourth Street, S.W. Post Office Box 2942 Largo, Florida 34649 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Bldg. C. 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sidney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400 Dr. J. Howard Hinsley, Superintendent Pinellas County School Board P.O. Box 4688 Clearwater, Florida 33518
Recommendation The General Counsel's Motion for Summary Judgement is hereby granted. The Respondent shall cease and desist from refusing to bargain collectively with the Charging Party. The Respondent cease and desist from interfering with, restraining and coercing public employees in the exercise of their rights guaranteed under the Act. That Respondent post an appropriate notice on forms provided by PERC in conspicuous places. DONE AND ENTERED this 4th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact During the fall of 1974 OWHEA, an affiliate of the National Education Association, commenced efforts to organize instructional personnel employed by OWJC. By letter dated February 20, 1975, directed to Dr. J. E. McCracken, the President of OWJC, the OWHEA requested recognition as the bargaining agent for all full-time, regularly employed, certified instructional personnel. (PERC Exhibit 5). By letter dated February 26, 1975 the request for voluntary recognition was denied. On March 3, 1975 the OWHEA filed a petition with the Public Employees Relations Commission through which recognition as the exclusive bargaining agent of instructional personnel at OWJC was sought. (Hearing Officer's Exhibit 1). A hearing was scheduled to be conducted on May 1, 1975. On that date the parties entered into an Agreement for Certification Upon Consent Election. In accordance with the Agreement the election was conducted on September 18, 1975. (Hearing Officer's Exhibit 1). On September 25, 1975 the Public Employees Relations Commission, through its Chairman, verified the results of the election. By a vote of 41 to 27 OWJC employees within the prospective bargaining unit rejected representation by the OWHEA. (Hearing Officer's Exhibit 1). On July 21, 1975, approximately two months prior to the election, the OWHEA filed an unfair labor practice charge with the Public Employees Relations Commission. Subsequent to the election the OWHEA filed Objections to Conduct Affecting the Results of the Election. By order of the Acting General Counsel of the Public Employees Relations Commission, the two matters were consolidated and a hearing was conducted before the undersigned on January 14, 15, 26, and 27, 1976. On November 7, 1974, Dr. J. E. McCracken, President of OWJC, and a voting member of the Board of Trustees of OWJC, called a meeting of the Faculty Council. The Faculty Council is a group of five faculty members, who meet periodically with the President and members of the President's staff to consider faculty problems and to provide recommendation to the President. At least four of the five members of the Faculty Council at that time were members of OWHEA. The meeting was called to discuss solicitation and distribution guidelines in light of the collective bargaining law, Florida Statutes Sections 447.201 et seq. which would go into effect January 1, 1975. Dr. McCracken wished to adopt guidelines for solicitations by employee organizations in the interim period before comprehensive guidelines were adopted by the Public Employees Relations Commission. The November 7 meeting lasted for longer than one hour. Every member of the council made some contribution to the meeting. Solicitation guidelines substantially similar to those ultimately promulgated, (See: PERC Exhibit 2) were discussed. No disagreement to such guidelines was expressed at the meeting. A solicitation guideline policy was then drafted by President McCracken, and was presented to the faculty at a November 19, 1975 meeting. At the hearing several members of the Faculty Council testified that they were surprised to see the guidelines as they were presented at the November 19 faculty meeting, but none of them spoke in opposition to the guidelines at the meeting. If members of the Faculty Council opposed the guidelines, their opposition crystalized after the November 9 Council meeting, and was not openly expressed at the November 19 faculty meeting. There may not have been a full consensus in support of the guidelines among members of the Faculty Council as expressed in the body of the solicitation guidelines; however, President McCracken was justified in believing that there was such a consensus since no opposition was expressed. The solicitation guidelines were later amended by a memorandum from Dr. McCracken to all personnel dated June 2, 1975. (See: PERC Exhibit 16). The solicitation guidelines presented to the faculty meeting on November 19, 1975 provide in part as follows: "The Faculty Council and the President of the College were in full consensus in affirming the following specifics relative to solicitations on the campus: College personnel are not to be subjected to solicitation by any groups or persons on-campus between 7:30 A.M. and 10:30 P.M. except in the following specified dining areas and during the scheduled lunch hour of any given employee. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, Mr. James Rhoades, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution campus, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature and notices which are not official College business shall be by placement on or in the square counters in the front lobby of the Administration Building. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. Mr. Rhoades, Director of Community Services, will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed." The guideline is signed by Dr. McCracken followed by the following note: "Although inadvertently overlooked in the discussions with the Faculty Council, it is, of course, obviously understood that College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business." The amendments to the solicitation guidelines distributed in the June 2, 1975 memorandum define "working time" as follows: "Okaloosa-Walton Junior College is officially opened to its clientele and operating with them from 7:30 through 10:30, Monday through Friday. Working time is that time when an employee has any scheduled obligations, whether instructional or non-instructional, to perform with respect to his position at the College including but not limited to all such obligations as required office hours, committee work, conferences, and official meetings." Solicitation is defined in the memorandum in pertinent part as follows: "College personnel are not to be subjected to solicitation by any groups or persons on- campus for any purpose when any person involved in the solicitation is on "working time" as defined above. Meetings and activities on-campus shall be scheduled through the office of the Director of Community Services, who maintains the official calendar of College activities and the official room-use schedule. All meetings and activities on the College campus, as a public institution, are intended to be in full compliance with the Sunshine Law of the State of Florida. On-campus distribution of any literature or notices which are not official College business shall not take place during working time, nor shall it take place in areas where actual work of public employees is normally performed. Posters and notices of interest to personnel of the College shall be placed in the covered main bulletin board in the front lobby of the Administration Building. The Director of Community Services will receive such materials for posting and will assure that such notices will be posted and that outdated and obsolete notices are removed. College clerical services, postage, materials production services, telephones, and equipments are to be used only for official College business and shall not be used in any way for solicitation or for promotion of unsanctioned activities or of organizations other than those which are official elements of the College or in which the College holds institutional membership." The November guidelines were not literally followed by the OWHEA, either in its efforts to secure the requisite showing of interest or in the election campaign. Many solicitations occurred outside of the designated areas during the proscribed hours, and several occurred during times when the person being solicited was actually on duty. The President of OWJC had reason to believe that the guidelines were being violated, but no effort to enforce them was ever initiated. Members and officers of the OWHEA who were involved in the organizational effort and in the election campaign gave various interpretations of the solicitation guidelines that were issued in November, and the amendments to the guidelines issued in June. The guidelines prohibited certain activities which the OWHEA considered desirable; however, the OWHEA was able to engage in a wide variety of campaign activities, and an even wider variety of activities that were available were not utilized. During the campaign members of the OWHEA spoke freely in support of the organization to non-members in the hallways, in the lunchroom, in the parking lot, and in faculty offices. The OWHEA distributed numerous bulletins, newsletters, and assorted memoranda to persons in the prospective bargaining unit. Material was delivered through the mails directly to OWJC, where it was placed in the faculty mailboxes; was delivered through the mails to the residences of faculty members; and was placed at a distribution point in close proximity to the mailboxes so that it could be read by any interested person. Respondent's Exhibits 2 and 4 - 16 are all examples of such literature that was distributed prior to the election. Respondent's Exhibits 17 - 23 are examples of literature distributed after the election. The total volume of materials distributed by the OWHEA through these avenues exceeded materials distributed by the Respondent. OWHEA members personally contacted many persons within the prospective bargaining unit. Many of the authorization cards which were forwarded by the OWHEA to the Public Employees Relations Commission with the representation certification petition were signed on campus as a result of such direct communications. The OWHEA conducted several off campus meetings. Members of the prospective bargaining unit were urged to attend such meetings and several did attend. There was testimony that these meetings were not well attended; however, there was no testimony offered from which it could be concluded that members of the prospective bargaining unit could not have attended these meetings or were not adequately apprised of them. On the contrary it appears that members of the prospective bargaining unit were apprised of the meetings and could have attended them if they desired. The OWHEA was allowed the opportunity to speak at a faculty meeting with respect to the benefits that might be obtained from the collective bargaining process, and with respect to the desirability of having the OWHEA as the bargaining agent. The OWHEA declined to avail itself of this opportunity. Mr. Chilton Jensen delivered a brief statement at that meeting. A copy of the statement was received into evidence as PERC Exhibit 3. Several campaign devices were available to the OWHEA, but were not utilized. The OWHEA could have distributed literature by placing it on automobiles in the faculty parking lot. There was testimony that this would have been too time consuming, but there was also testimony that on some days faculty members had as much as two hours of time which was not devoted to official OWJC duties. At least one bulletin board was available to the OWHEA for placing posters. While undoubtedly not the most effective campaign device, as noted by several OWHEA members, it is one, and could only have assisted in advancing the OWHEA position. While the OWHEA requested that certain meeting facilities be provided for presentations to be given during the lunch hours, no request was made to, conduct such meetings in the area set out in the solicitation guidelines. The only reason for failing to request use of these facilities given by OWHEA officials was that students were often present in that area, and that they did not feel it appropriate to "air the dirty wash" in an area where students were present. No request was made to alleviate this problem by setting aside, an area in the lunchroom. It was suggested that use of this facility would not have been appropriate because managerial officials of the OWJC would be able to attend the meeting. This was not, however, a concern of the OWHEA at the time that it was requesting meeting facilities. In its letter requesting use of other meeting facilities, the OWHEA invited Dr. McCracken, the chief managerial employee of the OWJC to attend the meeting. (PERC Exhibit 9). As stated above, the OWHEA was able to distribute materials to members of the prospective bargaining unit through the mails. There was absolutely no limitation upon such distributions. Distributions could have been timed so that members of the prospective unit would have received whatever amount of literature at whatever time the OWHEA deemed appropriate. No evidence was presented as to whether any telephone solicitations were conducted. This was a campaign device that was available to the OWHEA. Several campaign devices were not available to the OWHEA under the solicitation guidelines. The OWHEA was prohibited from using the campus mail system. The OWJC maintains a mailroom. Each faculty member has a mail box with a combination, in which many college related bulletins are placed. Mail directed to a faculty member through the Junior College is placed in these boxes. The OWHEA desired to use this mailing system so that it could distribute literature to members of the faculty without having to pay mailing expenses. The solicitation guidelines restricted the availability of meeting rooms. On one occasion the OWHEA requested a meeting room other than the lunch area designated in the solicitation guidelines. (See: PERC Exhibits 9, and 12) The request was denied by Dr. McCracken on behalf of the Respondent. (See: PERC Exhibits 10 and 13). The request was denied for several reasons, and indeed, as noted by one OWHEA official, would have been very difficult to grant as framed. It is apparent that any request for a meeting facility other than in the area designated in the solicitation guidelines would have been denied. The OWHEA was not permitted to make a presentation to any faculty meeting, other than at the November meeting. The OWHEA was not permitted to solicit members, or to campaign during working hours, and was not permitted to use the staff or facilities of the OWJC to assist in the campaign effort. The Respondent, under the direction of Dr. McCracken, engaged in an active campaign in opposition to collective bargaining and in opposition to the OWHEA. At a meeting of the faculty in February, 1975, Dr. McCracken read a statement which was received into evidence as PERC Exhibit 6. Counsel for the Respondent made an additional presentation at the meeting. Attendance at the faculty meeting during these presentations was optional. No compunction existed for any faculty member to stay during the presentation. The Respondent distributed numerous memoranda to its faculty respecting the collective bargaining process and OWHEA. Such memoranda were received into evidence as PERC Exhibits B, 14, 21, 22, 23, 24, 25, 26, and 27. Additional memoranda were distributed subsequent to the election. (See: PERC Exhibits 28, 29, 34, 35, 37, and 38.) The Respondent did not make any further presentations at faculty meetings, and engaged in no personal contact campaign. Members of the proposed unit who opposed collective bargaining spoke to undecided members of the proposed unit, but there was no evidence from which it could be concluded that there was any connection between that activity and the administration of OWJC. In support of their contention that the Respondent engaged in a campaign of misrepresentation, the general counsel and the OWHEA cite PERC Exhibits B, 14, 21, 22, 23, 24, 25, and PERC Exhibit 8 is a memorandum that was distributed to the OWJC faculty through the faculty mail system on February 26, 1975. In this memorandum Dr. McCracken treats the request from the OWHEA for recognition as the exclusive bargaining agent of instructional personnel at OWJC as an effort by OWHEA to avoid the election process. In fact, such a request is a condition precedent to the filing of a representation certification petition requesting an election when the employee organization claims that it represents more than fifty percent of the persons in the proposed unit, as did the OWHEA. Dr. McCracken's characterization of the request for exclusive representation totally ignores the fact that the OWHEA was required to make the request. There was, however, ample opportunity for the OWHEA to respond to Dr. McCracken's memorandum, and to set the record straight. The February 26, 1975 memorandum is not such as would have had any effect upon the election, which was conducted some seven months later. PERC Exhibit 14 is a memorandum dated April 11, 1975 from Dr. McCracken directed to the faculty of OWJC through the faculty mails. The memorandum essentially states the Respondent's position in opposition to collective bargaining and to the OWHEA. The following language from the exhibit was cited as a misrepresentation: . . . I would like to state my perception of where we are and where we are going from here. Essentially, it is very simple. We now have two facets of activity going on: (1) the intrusion into normal activities of a representation petition submitted to PERC by Mr. Eugene Stafford, local Director of UNISERV/FUSA/NEA and agent for OWHEA, this development forcing, from here on, active use by the College and by OWHEA of essential, specialized legal assistance; and (2) our ever-present, on-going obligations to the regular planning, services, functions, and commitments of this College." This memorandum constitutes at most an extravagant statement in opposition to the collective bargaining process. PERC Exhibit 21 is a memorandum from Dr. McCracken A directed to all instructional personnel, distributed through the campus mail system, dated September 9, 1975. In the memorandum Dr. McCracken sought to refute certain statements made by the OWHEA in a memorandum dated August 12, 1975 (Respondent's Exhibit 14). In its August 12 memorandum, the OWHEA asserted that the collective bargaining process resulted in substantial gains to members of the faculty in the public schools in Okaloosa County. Many of the "gains" set out in the OWHEA memorandum were subjects of collective bargaining in the Okaloosa County Public Schools; however, they were also matters which had already been a part of the teachers' contracts and were not gains at all. Far from containing misstatements, Dr. McCracken's September 9, 1975 memorandum accurately explains the exaggerations contained in OWHEA's August 12 memorandum. PERC Exhibits 22, 23, 24, 25 and 27 are similar to PERC Exhibit 14. They set out what can be called an exaggerated view in opposition to the collective bargaining process and to the OWHEA. The OWHEA distributed materials which present an exaggerated view in favor of the OWHEA. The memoranda distributed by the Respondent did not result in any subversion of the election process. The OWHEA had adequate opportunity to respond to all of the alleged misrepresentations except for those set out in PERC Exhibits 24, 25, and 27. The election was conducted on September 18, 1975. PERC Exhibit 24 was distributed on September 15, 1975; PERC Exhibit 25 `was distributed one September 16, 1975, and PERC Exhibit 27 was distributed on September 18, 1975. Because of the inability of OWHEA to directly respond to these memoranda, special attention should be given them. In PERC Exhibit 24 Dr. McCracken asserted that information distributed by the OWHEA respecting average teachers salaries at the OWJC was inaccurate. No evidence was offered at the hearing to establish that the information set out in PERC Exhibit 24 was inaccurate. PERC Exhibit 25 contains a statement that the OWHEA's national affiliate was supporting legislation that would require non-union members in a certified bargaining unit to pay a fee to the union in an amount equal to membership dues. The NEA was not supporting such legislation. This misrepresentation was not substantial, and would have had appeal only to persons who did not wish to have the OWHEA serve as its bargaining representative. PERC Exhibit 27 contains the following language: "The Board of Trustees and the President over the past months - almost a year now - have diligently resisted many harassments in order to bring to you today your right to vote secretly . . ." Dr. McCracken had not intended the word "harassments" to refer to activity of the OWHEA. While the word "harassments" might be construed as derogatory of the OWHEA, any member of the faculty of the OWJC would have already been aware that Dr. McCracken held a derogatory opinion of the OWHEA. To the extent that the term "harassments" is a misstatement, it is not one that would have had any material effect upon the outcome of the election. All of the various memoranda distributed by Dr. McCracken which contained exaggerated language, or statements in opposition to collective bargaining and the OWHEA, considered together, would not have had an improper, substantial effect upon the electoral process. As set out above, the OWHEA was not permitted to use the OWJC mailing system to distribute information to members of the faculty, and was not permitted to make presentations to any regular faculty meetings subsequent to November, 1975. The Florida Association of Community Colleges; however, was permitted to use the mailing system and was given time during the faculty meetings to make presentations, including solicitations for membership. The FACC is an organization whose general purpose is to advance the Florida Public Community College program. A copy of the FACC bylaws which set out the purposes of the FACC was received in evidence as Respondent's Exhibit 27. The Florida Association of Community Colleges is not an employee organization within the meaning of the Public Employees Relations Act. Dr. McCracken advanced the FACC as an organization worthy of support by members of the faculty; however, in doing that he was not a lending support to an employee organization opposing the OWHEA, but rather to a general professional organization. Other organizations were permitted to use the facilities at OWJC to make presentations. Such organizations included the American Association of University Women, a local concert group, armed services recruiters, and a politician. No employee organizations were permitted use of campus facilities for meetings, and those organizations which were permitted use of the facilities made educational, cultural, or community oriented presentations. In its motion to dismiss the objections case, the Respondent has asserted that the General Counsel conducted no investigation of the allegations of the OWHEA's petition. The General Counsel was invited to submit an affidavit respecting what, if any, investigation was undertaken. No affidavit was submitted, and it was asserted at the hearing that the investigation conducted in connection with the unfair labor practice case, and the hearing itself constituted the investigation. In its objections petition, the OWHEA asserted that the Respondent failed to deliver a list of teachers to the OWHEA as required in the Certification Upon Consent Election Agreement. Such a list was mailed to Chilton Jensen, who had been listed as the president of the OWHEA within the time period set out in the agreement. Mr. Jensen was ill, and he did not pick up his mail until after the period set out in the agreement. He then delivered it to Mr. Leatherwood, who had become President of the OWHEA. The failure of the OWHEA to obtain a copy of the list within the period set out in the agreement was not the fault of the Respondent. No substantial competent evidence was offered at the hearing from which it could be concluded that the Respondent coerced, threatened, or intimidated any members of the prospective collective bargaining unit; that the members of the collective bargaining unit were unable to inform themselves with respect to the merits of the collective bargaining system, and the OWHEA; or that the OWHEA was unable to disseminate information to members of the prospective collective bargaining unit. The Respondent did not interfere with, restrain or coerce its employees in the exercise of their rights under the Public Employees Relations Act.
Recommendation Based on the foregoing, it is ORDERED that the subject petition to determine the invalidity of Rule 38D- 17.023(2)(b), Florida Administrative Code, is granted, and Rule 38D- 17.023(2)(b), Florida Administrative Code, is found to be an invalid exercise of delegated legislative authority. DONE AND ORDERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1996. COPIES FURNISHED: Claire D. Dryfuss, Esquire M. Catherine Lannon, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jack E. Ruby, Esquire 2596 Seagate Drive, Suite 100 Tallahassee, Florida 32301-5032 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
Findings Of Fact The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr. Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr. Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety. DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. Rejected as subordinate to the Hearing Officer's findings. Accepted, but not for its material import. 6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter. 14-16. Accepted. 17. Rejected as to its material import. 18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted. 23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 24-25. Rejected as immaterial. 26-27. Rejected as subordinate to the Hearing Officer's findings. 28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence. 29-30. Rejected as subordinate to the Hearing Officer's findings. 31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 34. Rejected, as contrary to the preponderant weight of the evidence. Respondent's Proposed Findings of Fact: 1-2. Accepted. 3. Rejected as subordinate to the Hearing Officer's findings on this subject matter. 4-8. Accepted. 9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. 10-17. Accepted. COPIES FURNISHED: Danni Vogt, Esquire 308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302 C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Charles Couch, Superintendent Leon County School Board 2727 West Pensacola Street Tallahassee, Florida 32301
Conclusions This cause came on before Tom Gallagher, as Chief Financial Officer of the State of Florida, for consideration of and final agency action on the Recommended Order issued herein on October 4, 2003, by Administrative Law Judge J.D. Parrish. No exceptions to that Recommended Order were filed. , Having reviewed the Recommended Order and the record of this proceeding, and being otherwise apprised in all material premises, IT IS HEREBY ORDERED that the Findings of Fact and Conclusions of Law made and announced by the Administrative Law Judge in the Recommended Order are adopted without exception as the Findings of Fact and Conclusions of law of the agency. IT IS HEREBY FURTHER ORDERED that Janusz Kraj shall pay to the Division of Worker's Compensation a civil penalty in the amount of $1,100, within thirty days from the date hereof, said sum to thereafter bear interest at the rate of 9% per anum until paid. IT {S$ HEREBY FURTHER ORDERED that the Stop Work And Penalty Assessment Order entered by the Division of Worker's Compensation is affirmed, and that Janusz Kraj shall cease all business operations unless and until he provides evidence satisfactory to the Division of Worker's Compensation of having now complied with the workers compensation law by securing the necessary worker's compensation for covered employees and, pursuant to Section 440.107(7)(a), Florida Statutes, paid the civil penalty imposed herein. Lh DONE AND ORDERED this 3° — day of November, 2003. ST ) Sie \eouw Tom Gallag Chief Financial Officer Tomy “ay a PEF LAO
Findings Of Fact The UBC filed it's petition with PERC on April 16, 1975. (Hearing Officer's Exhibit #1). The HMREBU filed it's petition with PERC on May 7, 1975. (Hearing Officer's Exhibit #9). The Laborers filed it's petition with PERC on June 16, 1975. (Hearing Officer's Exhibit #5). The hearing in these cases was scheduled by separate notices dated July 9, 1975. (Hearing Officer's Exhibits #2, 6, and 10). The Escambia County School Board is a Public Employer within the meaning of Florida Statutes, Section 447.002(2). (See: transcript of proceedings 1/ at page 7). The UBC, the HMREBU, and the Laborers are Employee Organizations within the meaning of Florida Statutes, Section 447.002(10). (Stipulation TR 8). There is no contractural bar to holding representation elections in these cases. (Stipulation, TR 8, 9). There is no relevant collective bargaining history that affects these cases. (Stipulation, TR 9). The UBC, the HMREBU, and the Laborers are properly registered with PERC. (Hearing Officer's Exhibits #3, 7 and 11; Stipulation TR 10). PERC has previously determined that the UBC, the HMREBU, and the Laborers have filed the requisite showing of interest with their petitions. (Hearing Officer's Exhibits #4, 8, and 12). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties have stipulated that in the event PERC certifies a collective bargaining unit substantially similar to the one proposed by the Laborers, the positions of Transportation Director, Route Supervisor, Garage Foreman, and Assistant Garage Foreman should be excluded from the unit. (Stipulation TR 205, 206). In the event that a collective bargaining unit substantially similar to the one proposed by HMREBU is certified by PERC, the parties have stipulated that the Director of School Food Service, the Assistant Director, and the Lunchroom Managers should be excluded from the unit. (Stipulation TR 208, 209). In the event that a collective bargaining unit substantially similar to the one proposed by the UBC is certified by PERC, the parties have stipulated that the Supervisory Custodian, the Custodian in Charge, and the Custodial Foreman should be included within the unit. (Stipulation TR 210, 211). The Public Employee Relations Commission has previously certified a collective bargaining unit consisting of instructional personnel employed by the School Board of Escambia County. Each of the proposed units described in the petitions of the Employee Organizations in these cases include only non- instructional personnel. There are approximately 1740 persons employed by the Public Employer in non-instructional positions. Approximately 300 of these employees would be included within the unit proposed by the UBC. Approximately 230 would be within the unit proposed by HMREBU. Approximately 190 would be within the unit proposed by the Laborers. A civil service system, created by a special act of the legislature, has been in operation in Escambia County since 1953. See: Laws of Florida, Chapter 74-480 (1974). A Civil Service Board maintains a classification and salary plan, provides a central pool for testing and classifying new employees, and participates in an annual review of the salaries of classified employees. The Civil Service Board provides it's services for tide Public Employer in this case, and for other governmental entities within Escambia County, including the county. The classification system utilized by the School Board is the same as that utilized by the county. An employee of the School Board with a given classification would have the same qualifications, would perform approximately the same duties, and would receive the same salary and benefits as an employee of the county with the same classification. There are frequent transfers of employees covered by the civil service system among the governmental entities in Escambia County. All of the non-instructional personnel employed by the Public Employer, including all of the employees within the proposed collective bargaining units, are covered by the civil service system. All of these employees have salaries as set out in the civil service salary plan. The same sick leave and vacation leave policy, grievance procedure, disciplinary procedure, promotional process, insurance benefits, and retirement plan apply to all of these employees. It would be more time consuming for the Public Employer to engage in collective bargaining with several collective bargaining units than with one unit. During the week prior to the hearing in these cases the Public Employer's negotiating team spent four days in negotiations with the bargaining representatives of instructional personnel. Assuming that the bargaining representatives of several units successfully negotiated dues deductions, it is proper to assume that the existence of several units would place added bookkeeping chores upon the Public Employer. The three units for which certification is being sought include less than 40 percent of the non- instructional personnel employed by the Public Employer. Employees within the three proposed bargaining units are not interchangeable with one another. Custodial employees are not interchangeable with lunchroom employees, nor with bus drivers and mechanics, and so on. Employees within the three units have very little job contact with one another. Custodians perform limited functions in the lunchroom; however, custodians and lunchroom employees are not likely to have any contact with bus drivers or mechanics. Bus drivers and mechanics spend the greater portion of their work day off of the school campuses as distinguished from custodians and lunchroom employees. Custodians and lunchroom employees are supervised by the school principals. Bus drivers and mechanics are supervised by the Board's Director of Transportation, except that bus drivers are supervised by the school principals during the times they are carrying children to and from the schools. The work performed by personnel in the proposed units is very different, and lateral transfers between the proposed units are not likely to ever occur. While there is no collective bargaining history indicating a pattern of dealing with the proposed units separately, there has been a school food services association which performs social functions for food service employees. ENTERED this 6 day of January, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
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
