Findings Of Fact By Stipulated Settlement and Mutual Release executed December 22, 1988, (Ex. 1) signed by Mike Gresham, Director, Division of Administration, Department of Insurance and John Machules, the parties agreed to settle all issues and conclude the litigation and all claims in this case. The Deputy Commissioner approved the agreement on December 28, 1988, making it final with respect to both parties. In consideration of the Department agreeing to pay Machules the salary he would have earned plus compensation for the leave he would have earned between February 1, 1935 and December 31, 1988, in the gross amount of $76,713.33, Machules agreed to: Waive any and all present or future claims against the Department concerning the abandonment action; Waive the right to hearing in this matter and to dismiss with prejudice the case currently pending before the Division of Administrative Hearings; Voluntarily tender his resignation from employment with the Department effective at 5:00 p.m. on December 31, 1988; and Release the Department from all acts or omissions alleged or which could have been alleged in this cause of action or any derivative or collateral action at law or in equity. On December 22, 1988, Machules tendered his resignation effective 5:00 pm. December 31, 1988, (Ex. 1). On December 22, 1988, Machules, in consideration of the sum of $76,71.33 minus standard deductions (Ex. 1) executed a RELEASE releasing the Department from all claims arising from the termination of his employment with the Department. By letter dated December 9, 1988, (Ex. 2) Machules was advised by the Department that all details of the settlement had to be accepted and approved prior to the end of December 1988, that the Department could not credit him with an additional year of credible service (to qualify Machules for retirement) and if this was a condition he insisted upon, the case would proceed to hearing. By letter dated January 4, 1989, (Ex. 3) from the Department to Petitioner's then acting attorney, Machules was advised that the Comptroller's office needed a new W-4 form from Machules and affidavit of his earnings during the period the Department had agreed to pay him. By letter dated February 1, 1989, (Ex. 4) from the Department to Petitioner's attorney, Machules was advised of an IRS levy on Machules' salary and requested documentation that the delinquent taxes had been paid. By letter dated February 27, 1989, (Ex. 4) from the Department to Petitioner's attorney, the attorney was advised that Machules had telephoned the Department lawyer regarding the IRS lien and that he had advised Machules that his attorney should make the contact and further advised Machules that the information on this lien could be obtained from the Comptroller's office. The attorney was also advised that Machules had requested subpoenas for the earlier scheduled March 1, 1989, hearing. By letter dated March 17, 1989, (Ex. 5) the Comptroller's office advised the Department that all issues in the Machules' back pay award had been resolved except for Machules' interim earnings during the back pay period. By letter dated March 21, 1989, (Ex. 6) the Department forwarded a copy of the Comptroller's letter (Ex. 5) to Machules' attorney requesting income tax returns for the years 1986, 1987 and 1988 or W-2 forms for those years, either of which would be acceptable to the Comptroller. By letter dated March 31, 1989, (Ex. 8) the Department forwarded to Machules' attorney a copy of a letter and affidavits received by the Comptroller's office from Machules and advised the attorney that more specific information was required by the Comptroller before Machules' claim could be paid. By letter dated April 3, 1989, (Ex. 9) Machules wrote to Respondent's attorney acknowledging receipt of a copy of Exhibit 8 and stating, among other things, that since he had not received the $76,000.00 by December 31, 1988, "The tentative settlement agreement was NULL and VOID." However, he included a list of one place "employed from 1971 to present" and part-time employment at other places in 1987 and 1988. No specific earnings were provided. By letter dated April 12, 1989, (Ex. 10) the Department replied to Exhibit 9 emphasizing to Machules that it was the Comptroller that needed to be satisfied about Machules' interim earnings before it could pay his claim and he would not be paid until he satisfied the Comptroller on this point. By letter dated April 13, 1989, (Ex. 11) Machules forwarded to the Department copies of 1099-MISC and W-2's for 1987 and 1988. Receipt of this letter which provided the information previously requested was acknowledged by Respondent on April 18, 1989 (Ex. 12). By letter dated April 20, 1989, (Ex. 13) the Department forwarded to Machules' attorney a warrant dated 4/19/89 in the amount of $50,572.33 payable to John J. Machules with a Retroactive Payment Schedule showing a deduction for interim earnings, withholding tax and social security tax. By separate letter dated April 20, 1989, (Ex. 14) the Department advised Machules that the check settling his claim for back pay had been forwarded to Machules' attorney. By letter dated May 11, 1989, (Ex. 15) to Machules' attorney, the Department inquired if Machules had received payment so this case could be closed. By letter dated May 9, 1989, (Ex. 17) Machules was advised by AFSCME that the check being held for him would be returned to the Department if he did not pick it up before May 22, 1989. By letter dated May 13, 1989 (Ex. 17) Machules requested AFSCME to forward the check to him. This was done on May 25, 1989, (Ex. 17). On June 1, 1989, (Ex. 17) Machules acknowledged receipt of the check "as part payment for a future settlement." By letter dated June 23, 1989, (Ex. 16) AFSCME legal counsel advised that the union would not provide legal counsel at an abandonment hearing but would provide a representative to assist him at such a hearing. On the witness stand Petitioner acknowledged signing the settlement agreement and his letter of resignation from the Department; and that he received and cashed a check in the amount of $50,572.33. He also received an accounting of all deductions from the $76,717.33 noted in the stipulated settlement. Petitioner contends that because he didn't receive $76,717.33 in December 1988 the settlement stipulation became void as well as did his resignation. He could point to no line of either document indicating the stipulated settlement was void or voidable if all conditions were not met by December 31, 1988. In fact, Petitioner testified that he really didn't expect to get the check until January 1989, at the earliest. Delays in cutting the warrant and paying Petitioner the funds due under the settlement was due to Petitioner's failure to promptly provide proof to the Comptroller of his other earnings between February 1985 and December 1988. Respondent has fully complied with the terms of the settlement stipulation.
Recommendation It is recommended that all claims of John J. Machules resulting from the charges of abandonment of position in February, 1985, be dismissed. ENTERED this 19th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 19th day of July, 1989. COPIES FURNISHED: John Zajac AFSCME 1703 Tampa Street, Suite 1 Tampa, Florida 33602 John Hale, Esquire 200 East Gaines Street 4l3-B Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact On March 10, the Charging Party began negotiations on behalf of both units with the Public Employer seeking a contract for the 1976 - 1977 fiscal year. On May 10, after eight (8) negotiating sessions, the negotiators for both sides reached an agreement upon a tentative contract, subject to ratification by the unit's membership and approval by the Public Employer. During the eight (8) negotiating sessions prior to tentative agreement both sides agreed to the withdrawal of numerous contract proposals. On May 19 and 20, the tentative agreement was submitted to the membership of both units for approval, pursuant to Section 447.309(1), F.S. The membership of both units unanimously rejected the proposed agreement at that time. Thereafter, on May 21, the Charging Party notified the Public Employer of the rejection by letter and requested further negotiations pursuant to Section 447.309(4), F.S. Pursuant to this request the Public Employer and Charging Party met for the first post-rejection negotiating session on May 26. The Charging Party presented the Public Employer with three lists designated as List A, List B, and List C. List A enumerated articles contained within the rejected contract which the Charging Party felt could remain unchanged and would not require further bargaining. List B contained those articles which had been withdrawn during negotiations, but which the Charging Party was of the opinion were not necessary to include in the contract in order for successful ratification by unit members. List C contained those articles in which the Charging Party maintained that further negotiations were necessary in order to achieve a ratifiable contract. See General Counsel`s Exhibit number 4 received in evidence. James R. Norris, the Charging Party's president and chief negotiator testified that the items noted on List C were formulated on the basis of the information which the Charging Party solicited from the voting unit members during discussions which preceded the ratification vote. It is undisputed that on May 26, the Public Employer, through its chief negotiator, Robert E. DuVernoy, refused to negotiate on nine (9) articles found on List C which were presented to it by the Charging Party for further negotiations. Those articles were: leave, work rules, P.B.A. business, injury leave, pension, safety, group health insurance and funeral expenses, off-duty work, and special skills. DuVernoy testified that there was no requirement that the Public Employer bargain over items that had been withdrawn prior to rejection of the proposed agreement and he therefore did not negotiate on those items. He testified that his refusal was based on language of Section 447.309(4), F.S., and the "negotiating guidelines" signed by the parties at the start of negotiations. Based on this refusal, the Charging Party filed the subject charges with PERC on May 27. After the May 26 meeting the Public Employer, by letter, requested the Charging Party to put its proposals in writing. At the final negotiating session on June 2, specific written proposals on all the articles set forth on the "C" list were presented to DuVernoy, who accepted them but refused to respond and/or negotiate any of those items. DuVernoy maintained his prior position that there was no duty to bargain on items which had been withdrawn. DuVernoy declared impasse and at no time has the Public Employer negotiated on those items contained in List C. The Respondent takes the position that it had no bargaining obligation as to those items contained on List C for two reasons. First of all, it maintains that under the negotiating guidelines there was no requirement for further negotiation once an item had been withdrawn. Secondly, it maintains that Chapter 447.309(4), Florida Statutes, provides that upon rejection only the "agreement" shall be returned to the bargaining agents for further negotiation. (See Respondent's Exhibit number 1 received into evidence and made part hereof by reference). An examination of the negotiating guidelines reflect that it deals with two subjects. The first two sentences deal with proposals that are tentatively agreed to by both parties and provides for the agreement to be tentative and subject to further negotiation by the parties until the final agreement is signed by them. The last sentence provides that "proposals withdrawn by either party shall be initialed by both parties to signify that the proposal is no longer an issue for discussion". Respondent takes the position that the May 10 agreement reached by the negotiators represented a signed agreement and that each of the articles contained therein had been signed by the negotiators initialing the individual articles. Said agreement did not include certain items which had been withdrawn pursuant to paragraph nine (9) of the negotiating guidelines. Upon rejection by the union's membership, Respondent maintains that, under the guidelines, there existed no obligation on the City's part to negotiate on the withdrawn items. It is undisputed that during the course of the negotiations the parties did not rigidly abide by many of the guidelines and in those instances in which there was noncompliance, neither party complained. Respondent takes the position that since paragraph 14 of the guidelines provides for the changing thereof by mutual consent, it is clear that whenever "there is noncompliance with the guidelines and neither party complains, there has been an implicit mutual consent to change the guidelines for that particular application." Respondent maintains that there was never any mutual consent to change paragraph nine (9) of the guidelines. Therefore, Respondent urges that when it refused to bargain on the withdrawn items, it was simply following the guidelines as agreed to by the parties. In further defense of its position, Respondent refers to Chapter 447.309(4), F.S., which states in pertinent part that "if the agreement . . . is not approved by a majority vote of employees voting in the unit, . . . the agreement shall be returned to the chief executive officer and the employee organization for further negotiation." The City's interpretation of this is that when the union's membership rejected the May 10 agreement which had been agreed to by the negotiators, the parties were obligated to negotiate only on the agreement which was rejected. It therefore maintains that since the Charging Party submitted to Respondent items for negotiation which were not contained in the May 10 agreement, that the City was under no obligation to bargain based on the cited statute. An examination of the proposals submitted by the Charging Party for further negotiations cover items which have been traditionally found to be mandatory subjects of bargaining. As such, any alleged waiver of a statutory right must be clear and unmistakable. See for example, Timken Roller Bearing v. N.L.R.B., 325 F.2d 746, 54 LRRM 2785 (CA 6, 1963), The Item Company, 220 F.2d 956, 35 LRRM 2709 (CA 5, 1955). And in view of the certification which issued to the Charging Party by PERC, Respondent was under an obligation to continue bargaining with the Charging Party until impasse had been reached and the parties could not resolve their disputes via other statutory means. During the course of the hearing, the Respondent's chief negotiator armed with some approximately twelve (12) years experience at the negotiating table, indicated his familiarity with the negotiating process and was of the opinion that the negotiating process called for ratification by the unit members prior to army final agreement having been reached. Since the testimony is clear that the unit members unanimously rejected the tentative agreement reached on May 10, it necessarily follows that the parties were under an obligation to continue to make efforts to reach an agreement acceptable to both sides. It cannot be said with any degree of seriousness that the parties reached an approved agreement within the meaning of Chapter 447.309, F.S., in view of the unanimous rejection of the proposed agreement by unit members. Turning to the contention by Respondent that the Charging Party's negotiators waived its right to negotiate further on items not contained in the agreement, it is clear from the evidence that the Charging Party's negotiators did not waive or concede on those items which are mandatory subjects of bargaining. Furthermore, a fundamental doctrine of labor law recognizes that an employer is under a continuing obligation to bargain over any matter which is not included in the collective bargaining agreement but affects terms and conditions of employment. See for example, Long Lake Lumber Company, 160 NLRB 123, 63 LRRM 1160 (1966). In this case, the evidence evince that neither the union negotiators nor its members ever indicated a willingness to waive its statutory right to bargain over the items submitted in List C. Based on these facts, and the entire record in this case, I therefore conclude that the Respondent, by refusing to negotiate over mandatory subjects of bargaining, violated Section 447.501(1)(a) and (c), Florida Statutes.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the day of --+-h+----"-''----,,,'f---' Tallahassee, Florida. 200_, m Agency for Health Care Administration 1 Filed July 7, 2009 1:05 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Karen Dexter, Esquire Agency for Health Care Administration (Laserfiche) Louise Jeroslow 6075 Sunset Drive, Suite 201 Miami, Florida 33143 (U.S. Mail) Claude B. Arrington Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Ken Yon, Chief, Medicaid Program Integrity Fred Becknell, Medicaid Program Integrity Finance and Accounting CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the f ;t , 200.?' Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873
Findings Of Fact CENTRAL FLORIDA's complaint for Unfair Termination in the form of a letter dated July 9, 1986, was filed in triplicate with the Department of Highway Safety and Motor vehicles on July 10, 1986, and alleged as follows: CENTRAL FLORIDA MACK TRUCKS, INC. has two agreements with MACK TRUCK, INC. The first agreement is a Mack Distributor Agreement dated July 1, 1967. The second agreement is a Mack Mid-Liner distributor Agreement dated September 20, 1979. MACK TRUCKS' letter of April 10, 1986, indicates they are "terminating" my agreements. As alleged by Petitioner CENTRAL FLORIDA, Respondent has terminated two Distributor Agreements, the MACK Agreement dated July 1, 1967, and the Mid-Liner Agreement dated September 20, 1979. To the extent the letter/complaint addresses the Mack Distributor Agreement dated July 1, 1967, it should be dismissed upon authority of Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975). In Yamaha, the Florida Supreme Court was faced with the unfair termination statute here at issue, Section 320.641 Florida Statutes, and the issue of its applicability to dealer agreements entered into between manufacturers and dealers prior to the effective date of the statute, January 1, 1971. On the basis of Article I, Section 10, of the U.S. Constitution and Article I, Section 10, of the Florida Constitution, regarding impairment of contracts, the Supreme Court held We hold that Section 320.641, Florida Statutes, applies prospectively to motor vehicles franchise contracts signed after its effective date. Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d at 560. Yamaha is unambiguous. Therefore, as to the Mack Distributor Agreement, Section 320.641 does not apply. The Department of Highway Safety and Motor Vehicles, and through it the Division of Administrative Hearings and the undersigned hearing officer, have no jurisdiction to adjudicate the Complaint for Unfair Termination as it addresses the July 1, 1967 Mack Distributor Agreement. This determination was made in an Order entered in DOAH Case No. 86- 2622 on August 28, 1986. Since August 28, 1986, Petitioner has provided a more definite statement as to the Mack Mid-Liner Distributor Agreement which has been determined by the under signed Hearing Officer to be in compliance with her previous order. On October 3, 1986 Respondent moved for severance of the two distributor agreements, which severance was granted by an Corrected Order entered October 27, 1986. That order re-numbered the cause as pertains to the July 1, 1967 Mack Distributor Agreement as DOAH Case No. 86-4136 and retained DOAH Case No. 86-2622 for the cause as it pertains to the Mack Mid-Liner Distributor Agreement. Within its motion, Respondent represented that a recommended order (presumably leading to a final order) be entered at this time. Respondent has shown good cause for granting the relief prayed for. Without such relief, the Mack Distributor agreement hangs in limbo until such time as a recommended order is entered incorporating the August 28, 1986 ruling on the Mack Distributor Agreement and resolving all disputed issues of material fact concerning the Mack Mid-Liner Distributor Agreement is entered (presumably at least 30 days after conclusion of the final formal evidentiary hearing now scheduled to conclude January 6, 1987). Continuation of this situation pending the formal evidentiary hearing on the Mack Mid-Liner Distributor Agreement, typing of transcripts, submission of proposed findings of fact and conclusions of law, entry of a recommended order, filing of exceptions, and entry of the agency's final order prejudices Respondent Mack in that Mack is unable to appoint a new distributor in Central Florida.
Recommendation That the Secretary of the Department of Highway Safety and Motor Vehicles enter a final order dismissing this cause only as the July 1, 1967 Mack Distributor Agreement. DONE and ORDERED this 28th day of October, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986. COPIES FURNISHED: Donald E. Cabaniss, Esquire 11 East Pine Street Post Office Box 1873 Orlando, Florida 32302 Dean Bunch, Esquire 305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302 C. Jeffrey Arnold, Esquire 857 North Orange Avenue Post Office Box 2967 Orlando, Florida 32802
Conclusions For Claimant: Daniel Harwin, Esquire Freedland, Harwin, Valori, P.L. Suite 2300 110 Southeast 6th Street Fort Lauderdale, Florida 33301 For Respondent: S. William Fuller, Jr., Esquire Hall Booth Smith, P.C. Suite 400 200 West Forsyth Street Jacksonville, Florida 32202
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the district court of appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
