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
The Issue Whether Petitioner is eligible to participate in the Florida Retirement System based on his employment from January 29, 2001, through June 30, 2004.
Findings Of Fact The Secretary of the Department of Management Services through the Division is the administrator for the FRS. FRS was established by the State of Florida to provide pension benefits to eligible employees of the State of Florida and county agencies, including county school boards. Petitioner, George Tamalavich ("Petitioner" or "Mr. Tamalavich"), attended Fitchburg State College in Massachusetts, where he received a certificate for teaching in the trade industry. Prior to coming to Florida, Petitioner taught at the Worchester County Trade School for eight years, and participated in the Massachusetts State Pension Plan. In 1990, Petitioner relocated to Florida and obtained a part-time position, first for two days a week, then increasing to four days a week, teaching a computer-aided manufacturing and design course at McFatter Vocational Technical School (“McFatter”) in the Broward County School District (BCSD). In his initial position at McFatter, Petitioner testified that he knew he did not qualify for annual leave or other fringe benefits, including FRS membership, although he claimed not to remember that anyone specifically told him he was not receiving pension credit. From October 1993 until June 1999, Petitioner was employed by the BCSD in a full-time position under the terms of an annual contract. He testified that, with the annual contract, he had a salary, received fringe benefits and did not have to submit time sheets. Because he was employed in a regularly established position, Mr. Tamalavich was eligible for membership in the FRS and received service credit for 5 years and 9 months, through the end of his contract in September 1999. In September 1999, Petitioner requested and received a leave of absence for the 1999-2000 school year. The letter advising Mr. Tamalavich of the approval of his leave included a requirement that he notify the BCSB of his plans for the following year by March 1, 2000. In a letter dated February 14, 2000, the BCSB sent a reminder of the March 1, 2000, deadline. On April 3, 2000, the BCSB sent notice to Mr. Tamalavich by certified mail, with a receipt returned to the BCSB, that his termination would be recommended for failure to respond to the February 14, 2000, letter. Mr. Tamalavich testified that he received notice of his termination after the fact but not the letters setting the March 1 deadline. The notice of termination did not include information on appealing that decision. Mr. Tamalavich was hired at a different school in 2001. When he returned to work he signed agreements dated August 28, 2001, for the 2001-2002 school year; January 27, 2003, for the 2002-2003 school year; and August 25, 2003, for the 2003-2004 school year. Petitioner was employed as a part- time adult vocational education instructor at Atlantic Technical Center (“Atlantic”) in the BCSD during these school years. During his employment at Atlantic, Petitioner submitted time sheets and was compensated on an hourly basis. He acknowledged in his testimony that he was in a temporary position when he returned to work in August 2001. The agreements for part time employment at Atlantic provided that: THE ADMINISTRATOR MAY INITIATE OR TERMINATE THIS AGREEMENT UPON NOTICE. This appointment is contingent upon sufficient enrollment and attendance in the program/course “assigned” or the class will be canceled and this agreement shall be null and void. The employee's signature below indicates acceptance of the appointment subject to all that: terms and conditions of Board Policy 6Gx6- 4107. BCSD policy 6Gx6-4107 provides, in pertinent part, 2. The conditions of employment listed herein apply only to those personnel employed on a part-time, temporary basis to teach courses on a course-by-course basis or to provide part-time instructional support to programs in post-secondary adult vocational education, adult general education, Community Instructional Services, and education for personal improvement. . . . . Part-time temporary teachers shall have no guarantee or expectation of continued employment and may be terminated upon written notice by the location administrator. . . . . 7. Part-time temporary teachers shall be paid an hourly salary based upon the Salary Schedule adopted for part-time, temporary employees. . . . . 9. Part-time, temporary teachers shall not be eligible for a continuing contract or for a Professional Service Contract and are not entitled to fringe benefits regardless of the time of service as a part-time employee. Mr. Tamalavich testified that he saw BCSD policy 6Gx6- 4107 for the first time at the hearing in this case, although he worked at Atlantic from August 2001, until he was forced to leave due to a serious illness on March 12, 2004. The principal of Atlantic, who hired Petitioner, testified that he would determine every nine or eighteen weeks whether enrollment was sufficient and then give Mr. Tamalavich his schedule. Because Petitioner did not have six years in the FRS prior to July 1, 2001, and was not employed in a regularly established position on July 1, 2001, when vesting requirements were reduced from ten to six years, the Division determined that he is not vested in the FRS and therefore he is not eligible to receive retirement benefits from the FRS. Mr. Tamalavich claims entitlement to more FRS service credit because of errors made by the BCSD, which reflected that he was enrolled in the FRS from July 1, 2003, until August 25, 2004, although initially his counsel asserted that the contested period of time extended to June 30, 2005. As a result of a computer programming error, the BCSB incorrectly grouped together all personnel who had worked for more than six months and notified them, including temporary adult vocational education instructors, that they were eligible for FRS service credit. The notice dated May 7, 2003, was sent to "Identified Employees" in temporary positions existing beyond six months advising the employees that they would be enrolled in FRS effective July 1, 2003. Mr. Tamalavich testified that he received the notice. After the notice of May 7, 2003, several temporary adult vocational education instructors began to request the Division to review their entire employment history to determine their FRS service credit. After receiving an inordinate number of these requests and reviewing on a case-by-case basis personnel documents provided by the BCSB, the Division determined that temporary adult vocational education instructors were being reported in error by the BCSD for FRS service credit. In a letter dated June 7, 2004, the Interim State Retirement Director wrote to the Superintendent of the BCSD, citing Florida Administrative Code Rule 60S-1.004(5)(d)(3), which excludes positions established with no expectation of continuation beyond one semester or one trimester. The letter also included other factors related to ineligibility for FRS credit, including compensation at an hourly rate, and employment based on enrollment and funding contingencies. The Superintendent was advised specifically that "[a]dult vocational education instructors are essentially temporary in nature, where there is no promise, claim or right of employment beyond the quarter, semester or trimester to which they are appointed to teach." On June 23, 2004, the Director of the Benefits Department responded for the BCSD conceding that part-time adult vocational education instructors, including those filling temporary positions, were inadvertently enrolled in the FRS beginning on July 1, 2003, and that the FRS contributions would be retroactively reversed. On August 25, 2004, a notice was sent by the BCSB to "identified employees" advising them that adult vocational education teachers were erroneously enrolled in the FRS, and that they would be removed retroactively to July 1, 2003. Mr. Tamalavich received the notice that did not include any information on appealing the decision. There was no claim of erroneous deductions from Mr. Tamalavich’s pay, despite his testimony that FRS contributions were taken out of his paycheck. Employee funds are not withheld for payments into the FRS plan. It is and has been, since 1975, solely employer-funded. For temporary employees who are not eligible for enrollment in the FRS, the BCSB provides a FICA Alternative Retirement Plan administered by Bencor. Contributions to the Bencor-administered plan were made on behalf of Mr. Tamalavich, who requested and received a distribution from that fund in January 2007.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner’s request to participate in FRS from January 29, 2001, through June 30, 2004. DONE AND ENTERED this 8th day of April, 2008, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of April, 2008. COPIES FURNISHED: Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Jane Letwin, Esquire The Law Office of Jane Letwin 10540 La Placida Drive, North Coral Springs, Florida 33065 J. Leonard Fleet, Esquire Fleet Dispute Resolution 625 32nd Avenue, Southwest Vero Beach, Florida 32968 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-0950 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes, Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Plan (Fund).
Findings Of Fact The Fund is a public retirement system as defined by Florida law and is charged with administering and managing a pension fund for employees of the City. Respondent was employed by the City from February 2, 2000, until April 18, 2012, when he was terminated. He worked in various positions, most recently as Acting Lead Specialty Equipment Operator in the Solid Waste and Environmental Program Management/Quality Control program. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund and was a vested participant. On April 18, 2012, the City terminated Respondent based on a violation of three items in the City's Personnel Manual: neglect of duty by using a City vehicle for an unauthorized purpose; moral turpitude involving the violation of the City Code relating to use of public property; and moral turpitude by engaging in an illegal enterprise. The events leading to his termination are described below. On July 11, 2011, City of Tampa Detective DeGagne was investigating environmental crimes (illegal dumping) in the East Tampa area. After being alerted that illegal dumping had occurred on a vacant lot in the Highland Pines neighborhood, and the debris was immediately picked up by a City vehicle, Detective DeGagne located the City truck involved. Because the truck was under the supervision of Respondent, Detective DeGagne spoke to Respondent who initially explained that code enforcement had told him to pick up the debris. Because Respondent could not identify anyone in code enforcement who gave him that instruction, he was arrested. During a recorded interview with Detective DeGagne later that day, Respondent admitted that on at least two occasions, he was paid $40.00 to pick up the illegally-dumped debris as a favor to a friend. This conduct is a violation of section 838.016(1), which makes it unlawful for a public employee to receive compensation for performing an illicit act. Based on his admission of guilt, the City terminated Respondent effective April 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order determining that Respondent has forfeited his rights and benefits in the pension fund. DONE AND ENTERED this 28th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2017. COPIES FURNISHED: Luis A. Santos, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602-5133 (eServed) Natasha Wiederholt, CPA, GE Pension Plan Supervisor General Employees Retirement Fund City of Tampa 7th Floor East 306 East Jackson Street Tampa, Florida 33602-5208 Dwight Rivera 3324 West Kathleen Street Tampa, Florida 33607-1840
Findings Of Fact The Respondent caused the experience increments which had been in effect for all adult education teachers to be modified or terminated, and reduced the hourly wage amounts paid to adult education teachers. However, the real question presented is whether adult education teachers were included within the bargaining unit. The position of adult education teachers was not mentioned either in the inclusions or exclusions of the descriptions of the bargaining unit. Whether they would be included therefore turns upon whether adult education teachers are regularly employed certificated personnel." Adult education teachers were not required to be certificated, one primary requirement for inclusion in the unit. In addition, persons employed in the adult education program included both certificated day-time teachers and administrative personnel specifically excluded from the unit. Their employment was not contractual and could be terminated if a particular class was cancelled or dropped based upon lack of student enrollment. In such a case the adult education teacher's employment would be automatically terminated. Adult education classes were presented at night and the maximum number of hours that any adult education teacher would work would be six (6) hours per week. For both groups, employment as an adult education teacher was in addition to their regular employment. From a budgetary standpoint, adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult education portion of a teacher's salary for retirement or Social Security. Based on the foregoing facts, the Hearing Officer finds that adult education teachers are not "regularly employed certificated personnel" and therefore, are not within the bargaining unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken on the charges as stated in Paragraphs 10(A)(B)(C)(D)(E)(F)(G)(J)(H) and Paragraphs 11(A) and (B). Based upon the foregoing Findings of Fact and Conclusions of Law relating to Issue XI and Paragraph 10(H) of the complaint, the Hearing Officer would recommend that the Commission enter its order requiring the Respondent to cease and desist its refusal to bargain upon request over mandatory items of collective bargaining. DONE and ORDERED this 29th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ron Meyer, Esquire Frank & Meyer, P.A. Flagship Bank Building Tampa, Florida Norman J. Smith, Esquire Brinson and Smith, P.A. Post Office Drawer 1549 Kissimmee, Florida 32741 Austin Reed, Esquire Public Employee Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301 Mr. Leonard Carson, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Respectively on September 20 and September 9, 1988, the Petitioner and the Respondent submitted to the Hearing Officer their proposed Findings of Fact. In the Appendix To Recommended Order the Hearing Officer submitted recommending rulings thereon. The following constitutes the rulings in this Final Order on those proposed Findings of Fact. The petitioner's proposed Findings of Fact numbers 1 and 5 are hereby accepted and adopted in that they are supported by competent substantial, evidence. The petitioner's proposed Finding of Fact No. 2 is hereby rejected in that the petitioner did not terminate her position on August 17, 1987, and she was not reemployed on September 29, 1987, for the reasons stated above in paragraphs numbers 1 through 12. The Petitioner's proposed Finding of Fact No. 3 is hereby rejected upon the grounds and for the reasons stated in paragraphs No. 7 and 8 above. The Petitioner's proposed Finding of Fact No. 4 is rejected as phrased, for the reasons and upon the grounds set forth in paragraph No. 4 above. The Respondent's Proposed Findings of Fact numbers (1) through (7) are each hereby accepted and adopted in that they are each based upon competent, substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner became a member of the Florida Retirement System in September 1987 and allowing Petitioner to transfer her previously-earned Teachers' Retirement System credits to the Florida Retirement System. DONE and RECOMMENDED this 1st day of November, 1988, at Tallahassee, Florida. LINDA M. RIGOT 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 1st day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0673 Petitioner's proposed findings of fact numbered 1-5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 5 has been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 6 and 7 have been rejected as not being supported by the weight of the evidence in this cause. COPIES FURNISHED: Patricia Ann Ash, Esquire Harold N. Braxton, Esquire One Datran Center, Suite 406 9100 South Dadeland Boulevard Miami, Florida 33156 Burton M. Michaels, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether or not Respondent's, Ondraus Redding, employment with Petitioner, Seminole County School Board, should be terminated or otherwise disciplined for misconduct in office or conduct unbecoming an employee of the School Board.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is the governing board of the School District of Seminole County, Florida. Paul J. Hagerty is the Superintendent of Public Schools for the School District of Seminole County, Florida, and the executive officer of Petitioner. Respondent, Ondraus Redding, is employed by Petitioner as a laborer in the grounds maintenance department. His employment is subject to the collective bargaining agreement titled "Official Agreement Between the Non-instructional Personnel of the Seminole County Board of Public Instruction Association, Inc. and the School Board of Seminole County, Sanford, Florida." At all times material to this action, Petitioner has had in force a Drug-Free Work Place Program as authorized under Section 440.102, Florida Statutes. Petitioner maintains that it has also had a policy and practice of "zero tolerance" for possession and use of controlled substances. This policy is published, and is specific in its terms. The policy prohibits possession of marijuana before, during, or after school hours at school or in any school district location. (emphasis added) At 1:40 a.m., July 3, 2002, Respondent was stopped in a routine traffic stop by an officer of the Lake Mary, Florida, Police Department. This traffic stop occurred on Lake Mary Boulevard; no suggestion is made that this location is "at school or in any other school district location." During the traffic stop, the officer observed a baggie of green, leafy substance on the console of the automobile driven by Respondent. Respondent acknowledged ownership of the baggie of green, leafy substance. Field testing and, later, laboratory testing, confirmed that the baggie contained marijuana. Respondent was charged with violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana), which is a first degree misdemeanor. On July 22, 2002, Respondent was arraigned in Seminole County Court; at the arraignment, he pled nolo contendere to the charge. The Court accepted the plea, withheld adjudication of guilt, and fined Respondent. As a laborer in Petitioner's maintenance department, Respondent is an "educational support employee," as defined in Section 231.3605, Florida Statutes (2001). No evidence was presented to suggest that Respondent had not successfully completed a probationary period, and, as a result of language in Subsection 231.3605(2)(b), Florida Statutes (2001), Respondent could only be terminated for reasons stated in the collective bargaining agreement. The collective bargaining agreement, DISCIPLINE AND TERMINATION, reads as follows: Section 5. Regular employees who have been hired for a minimum of three (3) continuous years (without a break in service) shall not be disciplined (which shall include reprimands), suspended or terminated except for just cause. * * * C. An employee may be suspended without pay or discharged for reasons, including, but not limited to, the following providing just cause is present: [twelve reasons are listed, only three of which may have application to this case] 1. Violation of School Board Policy * * * 4. While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in * * * 7. An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/costs centers . . . . No evidence was offered to suggest that subparagraphs and 7. of Section 5. of the collective bargaining agreement are applicable to this case. Nor was any evidence offered to prove that Respondent was guilty of "misconduct in office and conduct unbecoming an employee of the School Board" other than his plea to the violation of Subsection 893.13(6)(b), Florida Statutes, possession of less than 20 grams of cannabis (marijuana).
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Seminole County School Board enter a final order rejecting the recommendation for termination of Ondraus Redding, removing him from suspension, and restoring back pay. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Ondraus Redding 342 South Wymore Road Apartment 101 Altamonte Springs, Florida 32714 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Dr. Paul J. Hagerty, Superintendent Seminole County School Board 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
Findings Of Fact Jurisdiction The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The Employee Organization Involved The complaint alleges, the parties admit, and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. In addition, the complaint alleges, the Respondent admits, and I find that the Charging Party is now, and has been at all times material herein, a certified representative for the purposes of collective bargaining for all employees employed by the Duval County School Board in the following described unit: INCLUDED: Classroom teachers: nursery, kindergarten, elementary (primary 1-3), elementary (intermediate 4-6), elementary (1-6), junior high (7-9), senior high (10-12), driver education, exceptional (special education), remedial, resource (art, music, etc.), vocational-home econo- mics, vocational distributive, vocational agriculture, vocational trade and indus- trial, vocational technical, office educa- tion, industrial arts, manpower and diver- sified (DCT), guidance counselors, occupa- tional specialists, media specialists, specialists-other, instructional, TV instructor, other instructional (except administrative assistants). EXCLUDED: Associate superintendents, general directors, directors, supervisors, coordi- nators, specialists, community school "coordinators", principals and assistant principals, and administrative assistants. The Charging Party was certified as representative of the above named employees on March 24, 1975, following voluntary recognition by Respondent. The Charging Party and Respondent were parties to a collective bargaining agreement effective July 1, 1975, which expired June 30. On March 16, Duval Teachers United's President, James W. Geiger (DTU) called Respondent's superintendent, Herb A. Sang and requested that collective bargaining for a successor agreement begin as soon as possible. Geiger suggested that bargaining commence during the first week in April which was rejected by Sang. After two other suggestions by Geiger, the parties agreed to meet on April 22, and the session opened with the introduction of the respective bargaining team members and an introductory statement by Robert B. Bates, Chief Negotiator for DTU. At the outset, Bates initially alluded to the fact that a few days prior, superintendent Sang had publicly attacked him as a "outside agitator and hired gun and that the DTU was coming to the table to pick the pockets of the taxpayers." Bates advised the Respondent's team that despite the public attack, mutual trust was essential to the negotiation process and that both sides should refrain from making such attacks in the future. Thereafter negotiations began by discussion of the ground rules which had been presented by Respondent and had been used in the previous year's negotiations. The first ground rule proposal stated that each negotiating session would be scheduled at a mutually agreeable date, time and place which would be determined at the preceding session. Bates expressed reservations about daily scheduling in light of his commitment to negotiate an agreement in St. Louis, Missouri. After some discussion with DTU President Geiger, Bates agreed with the day to day scheduling rule as proposed by Respondent. Bates also advised Respondent's team that he would like to take a vacation sometime in July, if negotiations had not been completed by that time and that he would want to clear it with Respondent's team prior to scheduling any time during that month. Respondent voiced no objections to Bates' suggestions and indicated that hopefully an agreement would be consummated prior to June 30. Thereafter the parties agreed to meet on April 28, 29 and 30, for the purpose of clearing up ground rules and according to DTU, to proceed into negotiations on the union's proposals. The parties met, as agreed, on April 28 and after three hours of discussion, the language of ground rules which had not been agreed to on April 22, was finalized. Andrew J. Knight, Respondent's chief negotiator, announced that since the ground rules stated that the parties' final proposals were to be submitted by May 10, and since all of the union's package was not in, no bargaining on proposals already submitted would occur until May 10. In this regard, the record reflects that approximately 80 percent of the DTU proposals had been submitted on April 28. When Respondent refused to commence substantive bargaining, the DTU team left the meeting with Bates advising the Respondent's team that DTU would resume bargaining when management submitted its proposals. The remainder of the DTU's proposals were submitted on May 10. Respondent's team submitted five proposals to the DTU on May 11. The parties again met on May 12, at which time Respondent's chief negotiator advised Bates that the five proposals was its entire response to the DTU's package. When Bates complained about not receiving counter proposals as to all of its proposals, the Respondent's team advised DTU that it should not look forward to receiving responses to all proposals. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by Respondent. The parties agreed to meet the following day and they placed on the agenda proposals dealing with Discipline and Discharge, Tenure, Personnel Files, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer. When the parties met on May 13, and DTU attempted to negotiate concerning Discipline and Discharge, Personal Rights, Academic Freedom, and Transfer, Knight stated that these subjects were "inherent rights of management" and therefore nonnegotiable. Respondent's counter proposals on the other agenda items were those extracted from the previous years contract. Bates tried to schedule future sessions and was told by Knight that such scheduling could not be done in view of the language of ground rule 1. (See joint exhibit 4). Bates attempted to secure a commitment from Respondent that it would meet on Saturday, May 15, since he had a plane ticket on Friday that he would cancel in order to negotiate on that Saturday. Knight responded that it would "probably be OK" but refused to categorically state that it would negotiate on the 15th because the strict interpretation of ground rules precluded such commitment a day in advance. The parties agreed to and met on May 14. On May 13, Bates attempted to place items the Respondent had declared nonnegotiable back on the agenda whereupon Respondent's negotiator insisted that agendas must be "mutually agreed to" and refused to put those items on the agenda. The following day, Bates again attempted to begin discussions of the DTU proposals that he wanted on the agenda and again Knight insisted that the DTU items were not on the agenda and therefore could not be negotiated. Near the close of the session and when it was too late for Bates to depart on his flight as scheduled, Respondent declined to meet on Saturday, May The next session was held on May 19 and at that time Bates insisted that the ground rules did not provide for a mutually agreed to agenda as Respondent insisted and he (Bates) thereupon demanded that the alleged nonnegotiable items be placed on the agenda for that date. Since this item did not appear on the agenda prepared by Respondent for the 19th, Respondent refused to negotiate and Knight responded that the Board counters would be given on each issue as it came up on a "mutually agreed to agenda". The DTU team left the meeting and Bates replied that the DTU would return when management's proposal package was forthcoming. On May 28, Knight and Geiger had a phone conversation in which the parties agreed to resume bargaining on June 3. Geiger questioned whether Knight and the remainder of the Board's team were serious about bargaining and Knight replied affirmatively and that they would move "immediately into their calendars". The parties met on June 3 at 5:00 P.M. at which time the Respondent presented the expired contract as its counter proposal package. No counter proposals were given on any item in the union package which was not contained in the expired agreement. Bates again attempted to negotiate the alleged nonnegotiable items with no success. Knight replied that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been achieved pursuant to the ground rules and no mutually agreed to agenda had been set up. Knight advised however that the Board's team was willing to sit with the DTU's team but not to bargain. The parties eventually agreed to meet on June 8. At the outset, Bates advised the Board's team that the DTU was unavailable for negotiations from June 19 to June 22 because of schedule conflicts but that the DTU was available for five days preceding June 19. No agreements were reached on June 8 except an agreement to meet on June 14. On June 8, Geiger asked the Respondent's team whether it intended to predetermine bargaining concerning the calendar by its adoption of the 76-77 school year calendar which had been put into effect. The Board's response was that the calendar could be modified at the bargaining table respecting any dates that affected students. Thereafter they met daily from June 14 - 19. During this period, one agreement was reached on June 16, when a "salesman" article was signed. Thereafter Respondent maintained its prior stand on issues of summer school assignment, student discipline, and a fair treatment clause stating either that the subject items were inherent management rights or that they were matters which were nonnegotiable in that they "infringed student rights". Respecting the DTU's attempt to produce dialogue on a DTU proposal on fair treatment, Respondent made the comment that the union only represented incompetent teachers, and that competent teachers had no problems concerning the meaning of "fair and equitable". Knight said that if the union was in charge of student discipline, "the firing squad would come into existence", and that he would "take it all the way to the supreme court before this would ever go into a collective bargaining agreement". Other items such as disruptive student policy, school nurse, and evaluations were labeled nonnegotiable by Respondent. During the June 18 session, Respondent's team advised the DTU's team that any agreement reached thru negotiations after the expiration of the current agreement would not be retroactive and that if the DTU did not meet on Saturday, June 19, the Board "just might have to file an unfair labor practice charge." The parties met again on June 19, and the entire discussion centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put them into a contract. Near the end of the June 19 meeting, Respondent's team indicated that they desired to meet on Sunday, June 20, which was Father's Day. Bates declined, citing his previous commitment in Tampa to which the Respondent had been informed and when the Board's team insisted that a meeting take place on the 20th or 21st notwithstanding previous DTU commitments, the parties engaged in a lengthy discussion about both teams' failure to meet as scheduled. According to Bates, he was told that the Board's team was available to meet on Wednesday, June 23, and when Bates advised that the DTU's team would be available, Respondent's team indicated its availability. The DTU team, believing that a meeting was setup for Wednesday, June 23, arrived for the session at 9:00 A.M. but the Respondent's team did not appear. The next meeting was held on June 24, the following day. Geiger states that he advised Knight that the DTU's team wanted to commence serious bargaining at the next session and on this, he was assured by Knight that serious negotiations would occur. Geiger received a memo from Knight stressing his version which in essence was that the June 24 meeting was solely to set a date, time and agenda, pursuant to the ground rules. (See GC Exhibit 4a). Knight, as evidenced by his memo, refused to bargain at the June 24 session, insisting that to do so would violate the ground rules since in his opinion, no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour, and officially reconvened after agreement pursuant to the ground rules. Geiger commented that such a move was "silly" and that he thought Respondent was "playing games". The next session took place on June 25 which centered almost exclusively around a budget presentation by school board member, Mssr. Clemmons. Respondent submitted its first counter proposals on salary on June 3, which was identical to the then existing current salary schedule. During his testimony, Kennedy admitted that that proposal was not submitted in earnest. Respondent's second salary proposal was submitted on July 1 which was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday i.e., June 26, and that they had expected it to be offered at the earlier sessions prior to July 1. At the July 2nd meeting, DTU requested from Respondent information regarding the employee benefits article it submitted to which Knight responded that "no cost estimates had been prepared and that DTU could work out the costs as easily as the Board could". Knight advised that the board was of the opinion that DTU did not feel serious about the Board's being able to afford the proposals and therefore no estimates were prepared. Estimates however were provided at the next meeting which, according to Geiger, were prepared by Messr. Simmons, of the Board's team. In submitting them, he advised that they were not detailed estimates. Also discussed at the July 2nd meeting was the issue of the sick leave bank. The Board team expressed no objection in principle to the foundation of a bank but expressed its opinion that it was illegal. Then advised that such a bank existed in Dade County, Knight testified that he still questioned its legality since Kennedy had made inquiries of the Dade County School Board and when he inquired as to the authority for such a bank, he was told that it was not expressly sanctioned by any statute, rule or regulation. On July 1, Respondent's team requested the assistance of a mediator and DTU responded that on July 2, it had not objection to the appointment of a mediator. DTU expressed its opinion that the appointment of a mediator at that time was premature but that they had no objection based on the Respondent's commitment that they were really "ready to get down to meaningful bargaining". Geiger conversed with Bates about the DTU's availability during the following week whereupon they agreed that they would have their team there and would be at the bargaining table. The DTU's team cancelled its vacation plans and agreed to be prepared to negotiate the next week. Geiger testified that negotiations were carried on during the week July 5 - 9 and that it was a fruitless exercise in futility". On July 9, after the DTU's team was unable to obtain counter proposals from Respondent, and when they refused to schedule the next meeting date or to agree to any time after the 26th of July, a period to which Respondent had agreed to in view of the DTU's advance statements that it would be gone for the three week period during July 2 thru July 26, the Union declared impasse. Mr. Kazin, the mediator, indicated that of the two following weeks he was not available for one of those weeks since he would be out of town and the DTU's team suggested that the remaining week be spent to resume bargaining for the teacher aide unit. It should be noted that the DTU was certified to represent the regular unit in addition to the teacher aide unit and that Respondent's team was used to negotiate on behalf of the school board for both units. Geiger testified without contradiction, that Superintendent Sang had released to the press) a copy of what he termed to be "nonnegotiable issues". When the DTU's team asked Respondent's team for such a list, they were advised that no such list existed initially and after pressing for approximately three to four hours, Mr. Knight produced a list which coincided with the list which had been distributed to the press and to which Respondent indicated that it would refuse to bargain over. (See General Counsel's Exhibit 5, received in evidence and made a part hereof). No bargaining took place between the period July 9 thru August 2. Bargaining resumed on August 3, at which time the DTU demanded that Respondent place on the table the salary schedule which had been released to the press by Respondent on July 22. Respondent refused to present the schedule which had never been submitted at the table. The demand was renewed at bargaining sessions on August and 5 and it was finally submitted by Respondent on August 10. The schedule was unilaterally adopted by Respondent September 13. During the August 10 session, Bates questioned whether Kennedy and the remainder of the Respondent's team had the authority to negotiate issues reported to be nonnegotiable by Respondent. Kennedy admitted that while there was some overlap between management rights and working conditions, he refused to negotiate those areas. A special master hearing was held on August 20 and his report was received by the parties on September 1. (See General Counsel's Exhibit #6). On August 21, negotiations resumed under a court order following the issuance of an injunction which was petitioned for against the Respondent for allegedly engaging in bad faith bargaining and against the Union for allegedly participating in unlawful strike activity. On August 21, the parties reached an agreement on the language on a discipline and discharge article, however the Respondent indicated that it would not include such agreement in the collective bargaining agreement but rather would append it to the contract. Messr. Kennedy of the Respondent's team advised that a transfer proposal would be included in the contract which was the first time that such a proposal had been introduced since negotiations started in April, if the Union accepted Respondent's proposal on discipline and discharge. The Union rejected the package as unacceptable following Respondent's notice that the agreed language was not for inclusion in the collective bargaining agreement. During a circuit court hearing on the progress of the parties' negotiations on August 27, DTU offered to accept school board language on two issues, grade reporting and court or jury duty. No further negotiations were held after September 9. A final package offer was made to DTU which was essentially the same package offer of August 21 with the exception of the transfer/discipline and discharge proposal and with a retroactive effective date of July 1. When this package was offered on September 9, the Respondent was at the same time rejecting the special master's report in toto. As stated, in its answer, Respondent takes the position that it has not refused or failed to bargain collectively in good faith in that the items listed in the Acting General Counsel's complaint are items which are vested in Respondent by Chapter 230, Florida Statutes and Section 447.209, Florida Statutes and it is therefore precluded as a matter of law from negotiating said items. Section 447.209, F.S., gives public employers the right to unilaterally determine the purpose of its constituent agencies, to set standards, to exercise control, to take disciplinary action for cause and to relieve employees from duty due to lack of work or for other legitimate reasons. That statute goes on to read that employees aren't precluded from raising grievances where decisions have the practical consequence of violating terms and conditions of any collective bargaining agreement in force or any civil or career service regulation. It seems glaringly apparent therefore that the legislature foresaw instances wherein public employers and employee organizations would reach agreements on the very matters on which Respondent would urge that it has no obligation to include or bargain about. Collective bargaining as defined in the Public Employees Relations Act, Section 447.203(14) is: "the performance of the mutual obligations of the public employer and the bargaining agent of the employee organization to meet at reasonable times, to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employement, except that neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this part". The undersigned could find no Florida cases in which this issue had been decided, however there are numerous federal and state cases in other jurisdictions in which collective bargaining has been defined by judicial and other administrative bodies. Section 447.203(14), F.S., is strikingly similar to Section 8(d) of the National Labor Relations Act, 29 U.S.C. 151, et-seq. Respondent does not dispute the fact that it approached the negotiation table with a fixed and preconceived determination on its part to never reach agreement on those issues listed in the complaint filed herein. It maintained this position in the negotiations without doing anymore than listen to Union arguments on those points and by so doing it engaged in surface bargaining on those as well as other issues, without any attempt to explore the arguments thereon with a sincere desire to reach agreement on them. Court decisions too numerous to cite here have stated that "good faith bargaining takes more than mere surface bargaining or "shadow-boxing to a draw" or "giving the union a run around while purporting to be meeting with the union for the purpose of collective bargaining". On the subjects listed in the complaint, it is patent that by the third negotiating session, the Union had brought out and repeated all its main arguments for those subjects. Throughout the sessions, Respondent stood fast on its position that it would never include those subjects into a collective bargaining agreement. Its position on this had hardened even at the outset of the negotiations when it maintained that it had customarily appended said subjects to the collective bargaining agreement such that they would not be subjected to the grievance arbitration provision of the collective bargaining agreement and further that those items were among those rights exclusively vested to it by Section 447.209, F.S. Respondent maintains that it released information to the public through its agent which was an exercise of its right of free speech pursuant to Section 447.501(3), Florida Statutes, and/or that it was its legal duty imposed on it by Chapter 119, Florida Statutes. The Respondent apparently overlooked the fact that the employee organization (the Charging Party here) is certified to be the exclusive bargaining agent for purposes of bargaining. This means of course, that as agent for unit employees, it is charged with the responsibility of negotiating with the public employer in an attempt to reach agreement on all matters affecting wages, hours and other terms and conditions of employment. This also means that Respondent is obliged to do more than merely listen to the various proposals advanced without any attempt or effort to reach an agreement on basic terms which are customarily included within collective bargaining agreements. As previously stated, the Act does not require concessions by either side during bargaining nor the surrender of convictions of alterations of philosophies, provided such convictions or philosophies are not made operative in such manner as to foreclose bona fide consideration of bargainable issues. Duro Fittings Company, 121 N.L.R.B. 377, 383. Throughout these sessions, DTU was repeatedly rebuffed on minor problems such as establishing an agenda and obtaining agreement for future negotiating sessions. Respondent maintained its stand on all the items alleged by it as "nonnegotiable" which left the Union in a situation wherein, in order to make any movement, it was forced to submit counters to its own proposals without any movement on management's part. The failure on management's part to submit any counter proposals on those items lends support for an inference that they were not bargaining in good faith. Further support for this inference lies in the fact that Respondent publicly denounced the DTU's chief negotiator as a hired gun and as a person who wanted to pick the pocket of the taxpayers and by publicly releasing to the press items which the employees' exclusive bargaining representative had been repeatedly pressing for at the negotiating table. I recognize it is not usually the obligation of the employer to make suggestions when it takes a position and maintains it in good faith, and that refusal by an employer to aid a Union by acceding is not sufficient, standing alone, to permit an imputation of an intent to frustrate final agreement. This is true only if the refusal is supported by reasons of substance which are advanced in good faith and to further legitimate business interests, while indicating that it still maintained an open mind on the issue. Hence, where the Union had displayed a disposition to be flexible and make concessions on the deadlock issues and Respondent itself indicated publicly to the unit employees that it had in mind a possible raise for them, it was incumbent upon Respondent, as evidence of its good faith, to broach the alternatives formally to the Union immediately after, if not before, said information was released to the press, especially when the Union questioned its stand, if it was at all sincere in its desire to resolve those issues in an effort to reach a final agreement. Also the thrust of the article released to the press which in essence indicated that the Union had lost a 6.25 percent raise because their Union forced negotiators to an impasse, while failing to advise the Union even after the details of such had been released to the press, strongly indicated that the Respondent was treating the Union, not as a certified bargaining agent of the workers, but as an interloper seeking to gain some advantage for itself, in any dealing between Respondent and its employees. This attitude ignored the fact that Respondent was in fact and in law dealing with the employees themselves, when it talked to the Union as their bargaining agent. This is strong indication of bad faith bargaining, for in effect Respondent was announcing to the employees, during and after bargaining, that while it would give them benefits as workers it would not consider a grant of certain benefits, because they were asking for them through their bargaining agent. See for example Kayser-Roth Hosiery Company, 176 N.L.R.B. 999, 1000, 1001. Considering the totality of its conduct vis-a-vis the employees and their chosen agent before, during and after the negotiations, I am constrained to conclude that Respondent's standing attitude of hostility toward the Union, including its blunt threats against the bargaining team's members, pervaded and controlled its attitude in bargaining and its adamant opposition to those subjects was the primary cause of the impasse reached. In this respect, Respondent failed to meet its obligation to bargain in good faith with the Union in violation of 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining appears in its dealing with the press when it released the fact that the union had been instrumental in losing a 6.25 percent raise because it (the Union) forced negotiations to an impasse while knowing that it had never offered such to the Union and when requested for such proposals, it initially denied that it existed and after repeated requests only grudgingly released such. The same is true with respect to the failure to submit to the DTU's negotiating team a list of items which Respondent labeled "nonnegotiable" by its taking the position initially that no such list existed and after repeated requests to find out if such a list existed, the Respondent belatedly released such to the DTU's team. The Respondent's contention that its purpose in issuing the letter to the press was not to make a proposal but to (a) avert a strike and (b) to allow the Union a face saving means of returning to the bargaining table is unpersuasive and is regarded by the undersigned as incredible in view of the entire course of conduct by the Respondent's team throughout the negotiating process. This was further clear indication of surface" or "sham" bargaining in bad faith in violation of the Act. 2/ The evidence indicates that on at least two occasions after the information had been released to the public, Respondent refused to grant those releases to the DTU's team at the negotiating table. I find that such conduct on the part of the Respondent is coercive in nature because, when stated in the terms released to the press without explanation, they tended to demonstrate to employees the futility of further negotiations on salaries, as well as an adamant and apparent unreasoning attitude on it, which is some evidence of bad faith bargaining. I find that Respondent thereby violated Chapter 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining is found in the fact that it refused to reduce and include in written form in its collective bargaining agreement, those items to which it reached agreement on. By engaging in such conduct, I find that the Respondent thereby engaged in unfair labor practices within the meaning of Section 447.501(1)(a) and (c) of the Act. Additional indicia of Respondent's bad faith bargaining lie in its insistence on agreeing to schedule sessions on a daily basis and by its refusal to discuss items which, although not on the agenda, were related and the only reason Respondent advanced for not discussing such items was based on that fact. At one session, when DTU attempted to discuss a non-agenda subject, management suggested that the session be adjourned for one hour and reconvene so that the additional non-agenda items could be placed on the agenda and discussed. In each case in which the Respondent is charged with having failed to satisfy its duty to bargain in good faith, the entire course of conduct at the bargaining table has to be judged and considered by the totality of the circumstances. The term good faith has been held to mean that parties must approach the bargaining table with an open mind and with the intent to reach agreement. See for example N.L.R.B. v. Herman Sausage Company, 275 F.2d 229 (CA5, 1960); N.L.R.B. v. Reed and Prince Manufacturing Company, 205 F.2d 131 (CAl, 1953). Turning to the outset of the negotiation process in this case, prior to the first session, Bates testified without contradiction that superintendent Sang publicly attacked him as Charging Party's national representative as a "hired gun" and a person who was seeking to "pick the pockets of the taxpayers". Concerning his memo of April 19, Kennedy testified that "this document reads like history written in the spring as to what occurred not". See General Counsel's Exhibit #7 received into evidence. As that exhibit reflects, Respondent seemed calculated and more concerned with establishing rules and creating other subterfuges by which it could refuse to bargain than it was with performing its obligation to bargain in good faith. For example, evidence reveals that bargaining did not commence until approximately five weeks after the DTU's initial request. The first session centered around clearing up a ground rules proposal which as the evidence reveals, were the previous years ground rules. It took more than two negotiating sessions to finalize ground rules. This pattern continued throughout the negotiating process and clearly evinces Respondent's strategy of putting form over substance. Management does not deny and in fact admits that it termed various subjects "nonnegotiable". However it urges that it would include such subjects as appendages to the collective bargaining agreement. By so doing, the enforceability of such appendages would indeed be questionable. Furthermore, Section 447.001, F.S., requires the parties to negotiate a grievance procedure which shall be final and binding on the parties. By appending traditional subjects of collective bargaining such as discipline and discharge to the collective bargaining agreement, the employer would obviate its obligation to submit any disciplinary action to the grievance machinery and the collective bargaining agreement and would make a nullity of the proviso to Section 447.209, F.S. Also, Section 447.309(5), F.S., provides in pertinent part that "any collective bargaining agreement ... shall contain all of the terms and conditions of employment of the employees in the bargaining unit The evidence clearly shows in this regard that Respondent, after having agreed on certain proposals, refused to put them in the collective bargaining agreement thereby obviating any obligation to grieve them by the grievance machinery. Without going through each of the subjects listed in the complaint, some discussion on some of the items is worthy of mention in this decision. The Respondent termed discipline and discharge, seniority, transfer, summer school assignment, student discipline and disruptive student policy nonnegotiable subjects. However it agreed to append such subjects to the collective bargaining agreement. It is ludicrous to even suggest that discipline, discharge, seniority and transfer are not matters which affect an employee's employment relationship. As the evidence indicates, Respondent has a rule which states that violations of its policies subject a teacher to disciplinary action including discharge. Thus, for example, if a teacher fails to discipline a student who is disruptive in a manner which, according to Respondent, violates its policy, said teacher is subject to disciplinary action which often may lead to discharge. Another subject, seniority, has been held by numerous jurisdictions to be a mandatory subject of bargaining in that it, among other things such as merit, determines which teachers are eligible for promotion to various positions which become vacant during the school term. This necessarily affect a teacher's employment conditions and is therefore a term and condition of employment within the meaning of Section 447.309, F.S. Additionally, numerous jurisdictions have held that the impact of a managerial decision on terms and conditions of employment is a mandatorily negotiable subject. See for example, West Irondequoit Teachers Association v. Helsby, 315 N.E. 2d 775(Ct of App., 1974). Based on the foregoing, and by offering only the prior contract language as its counter proposals on the vast majority of issues, by refusing to tie logically related issues together in negotiations, by unreasonably delaying discussion on money issues, by attempting to denigrate the DTU's representative in the press and by attempting to deal directly with the employees and thereby bypassing the employees designated exclusive bargaining representative, and by unreasonably delaying discussion on money issues, Respondent effectively refused to bargain throughout the entire course of negotiations. Based on the above conduct and in light of Respondent's continual insistence on appending agreed upon proposals to the collective bargaining agreement and thereby avoiding the enforceability thereof by arbitration, Respondent thereby violated Section 447.501(1)(a) and (c), F.S.
Recommendation Having found that the Respondent has refused to bargain collectively in good faith with the Union as found above, I shall therefore recommend that it take the following action, which is necessary to effectuate the policies of the Act: Upon request, bargain collectively in good faith with the above-named union as the exclusive bargaining representative of all employees in the appropriate unit described above and, if an understanding is reached, embody such understanding in a signed agreement and recognize and deal with said union as such exclusive bargaining agent. DONE and ENTERED this 22nd day of November, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is when the 97-day probationary employment period began to run for each of the Respondents, and whether their employment could be terminated without just cause.
Findings Of Fact Petitioner is the School Board of Polk County, the entity responsible for operating, monitoring, staffing, and maintaining the public schools of Polk County. The Board hired both Respondents, Diane O'Brien and Marcee Gunn, to fill positions within the Polk County School System. Prior to the 2003-2004 school year, Federal requirements under the "No Child Left Behind" ("NCLB") program mandated that by the end of the 2005-2006 school year, all teachers in core academic areas must be "highly qualified" as defined by Federal guidelines. The guidelines state that a teacher must possess a combination of both appropriate certification and documentation of subject area knowledge. The determination of whether a teacher had the requisite knowledge was done by way of a battery of tests in the subject areas. At the time the NCLB program was instituted, Polk County was experiencing a high level of growth and was hiring approximately 1,200 new teachers each year. The shortage of teachers who had obtained the highly qualified status resulted in the Board hiring a class of teachers who were not highly qualified, but under certain restrictions. These teachers were deemed D-1 provisional substitute teachers. The D-1 teachers were hired with the intention of allowing them to be employed as substitutes, pending their passage of the subject area tests. D-1 teachers were first hired by the Board to fill positions in the 2002-2004 school year. D-1 teachers were paid a daily rate of pay and received insurance and retirement benefits. If the teacher ultimately became highly qualified, they were to be given seniority consideration retroactive to the date of their hire.1 As substitutes, D-1 teachers were "at will" employees and were not contract employees. Their employment could be terminated with or without cause at any time. All D-1 positions were terminated at the end of the school year for which they were hired. If a teacher had not obtained highly qualified status, they could be hired as a D-1 teacher for the next school year. The D-1 program was eliminated, in whole, at the end of the 2007-2008 school year. Diane O'Brien Respondent, Diane O'Brien, worked as a para-educator for 15 years before earning a degree in special education from Nova Southeastern University in 2006. O'Brien was hired by the Board to be a D-1 substitute teacher for handicapped students at Haines City High School for the 2007-2008 school year. At the time of her hire, O'Brien signed a Conditional Employment Agreement that refers to her as "Teacher." The agreement does, however, set forth certain requirements for becoming a regular teacher. O'Brien was assigned a full-time para-educator to assist her and was given a classroom for purposes of fulfilling her position. At all times during the school year, O'Brien acted as and considered herself to be the official teacher for the class. O'Brien was evaluated during the school year by the principal and the assistant principal. O'Brien attended the IEP meetings and was responsible for writing IEPs for her students. O'Brien was never referred to by staff or other teachers as a "substitute" teacher during that school year. Nonetheless, O'Brien signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year" when she was hired. The document clearly indicates the requirements for a regular teacher and states that until such requirements are met, the teacher is considered a provisional D-1 substitute. O'Brien does not specifically remember signing this particular document; she said she signed many documents when hired, and none of them were explained to her. O'Brien did not meet the requirements to be a regular teacher at that time. During the 2007-2008 school year, O'Brien was paid as a D-1 substitute teacher, i.e., $115 per day, plus benefits. As early as August 2007 (the month classes began), O'Brien contacted a Ms. Capoziello requesting that her salary be changed to full-time teacher salary. She was advised that she had not yet met the requirements for a full-time teacher, because she had not yet met the "Certified, Qualified and Highly Qualified" requirements set forth in the Guidelines for Provisional Substitute Teachers. In December 2007, O'Brien indicated in an email that she was working hard to pass the necessary tests, but had not yet done so. In January 2008, O'Brien contacted the human resource officer to inquire as to when her status would change. In response, she received the following explanation: Please refer to the individualized Guidelines for Provisional Substitute Teachers 2007-2008 School Year that you signed on August 8, 2007. During New Educator Orientation, you were provided with the requirements necessary to attain "highly qualified" status for your ESE assignment. You are fully certified in ESE, but according to federal legislation, you are not considered "highly qualified" as defined in the law, because you have not "demonstrated subject matter competence" to teach ESE academic subjects. [F]or your current assignment, you need to pass the Elementary Education K-6 subject area exam to be deemed "highly qualified." After you have completed this requirement that was provided to you on August 8, 2007, then you will be eligible to transfer to B1 status as a regular teacher. (Emphasis in original.) After the end of the 2007-2008 school year, O'Brien passed the subject area exam necessary to achieve "highly qualified" status. She was then hired in the 2008-2009 school year as a regular teacher by the Board. O'Brien commenced work under her first annual contract with the Board as a regular teacher on or about August 11, 2008. On November 11, 2008, a memorandum was issued to O'Brien by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." O'Brien signed the memorandum, acknowledging receipt. The memorandum identifies O'Brien as "an initial annual contract teacher." The effect of the memorandum was termination of O'Brien's employment by the Board. O'Brien maintains that her period of teaching during the 2007-2008 school year was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. Marcee Gunn Respondent, Marcee Gunn, received her education at the University of Missouri at St. Louis. Gunn received her Florida teaching certification and was, in August of 2007, a certified teacher. Gunn was hired by the Board as a pilot D-1 substitute teacher for the 2007-2008 school year. A pilot substitute teacher fills in for absent teachers at one particular school, rather than going to various schools. In February 2008, Gunn was transferred from a pilot substitute to a permanent position as a kindergarten teacher at the School. The previous teacher had moved to another position, and Gunn was asked to fill the position through the end of the current school year. The permanent position was also classified as D-1 substitute, because Gunn had not yet become highly qualified. Gunn acted as, and considered herself to be, the full-time kindergarten teacher. She organized the classroom, prepared all student assignments, issued a monthly newsletter, and attended IEP meetings. Gunn was evaluated in her position by the principal and assistant principal. While Gunn was a pilot D-1 substitute, she received pay of $115 per day, plus benefits. At the time she became the permanent kindergarten teacher she received the same pay, but believed she would be receiving regular teacher pay. However, upon taking the kindergarten teacher position, Gunn signed a document entitled, "Guidelines for Provisional Substitute Teachers 2007-2008 School Year." The document clearly indicates that Gunn was being hired as a D-1 substitute and sets forth the requirements for becoming a regular teacher, i.e., passing a test in the subject area to be taught. Gunn also acknowledges signing the document, but does not have any specific recollection of having seen it. She did know that the document required her to pass the K-12 subject area exam in order to be reclassified as a regular teacher. Gunn's position was terminated at the end of the 2007-2008 school year. Gunn was re-hired by the Board for the 2008-2009 school year as a regular teacher for the same kindergarten class. (The evidence is not clear whether Gunn was hired in 2008-2009 as a D-1 substitute or a highly qualified teacher. The fact is not relevant, however, because even if she was a regular teacher, she would have been in her first year of an annual contract.) On November 14, 2008, a memorandum was issued to Gunn by the Board entitled, "Dismissal of Instructional Employee During 97-Day Probationary Period." Gunn signed the memorandum, acknowledging receipt. The memorandum identifies Gunn as "an initial annual contract teacher." The effect of the memorandum was termination of Gunn's employment by the Board. Gunn maintains that her period of teaching during the 2007-2008 school year (or at least a part of it) was as a regular teacher. If that is the case, then she could not be terminated within the 97-day probationary period without the establishment of just cause. There is no dispute by Respondents that the dismissal memoranda were issued within 97 days of their commencement of work during the 2008-2009 school year. Rather, each Respondent contends that their full-time, contracted employment with the Board commenced earlier than the 2008-2009 school year.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Polk County School Board, terminating the employment of Respondents, Diane O'Brien and Marcee Gunn, effective as of the dates determined by the Board. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2009.
The Issue The issues in this case are whether Petitioner was overpaid certain wages by the Respondent, and, if so, whether repayment is warranted.
Findings Of Fact Petitioner was an employee of the Department until December 13, 2005. She was employed as a corrections officer and, as such, was eligible for criminal justice incentive pay. Criminal justice incentive pay is paid separately and apart from regular salary payments through a separate payment system used by the Department. A person whose employment with the Department is terminated would not be terminated automatically from the incentive pay payment system. Upon her termination from employment with the Department, Petitioner continued to receive incentive pay by direct deposit to her bank account. This occurred on five occasions following her termination. The total amount of the overpayments to Petitioner after taxes was $111.13. The Department asked Petitioner to return the money that had been overpaid, but Petitioner did not comply with the request. In her request for a formal hearing, Petitioner alleged some error in the amount of overpayments being claimed, but no evidence was presented to support that allegation at the final hearing. The Department presented evidence as to each of the incentive pay payments to Petitioner following her termination from employment. Respondent averred that all taxes withheld from the incentive payments would be credited to Petitioner upon return of the overpayment amount.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Corrections requiring repayment of the incentive payments made to Petitioner in the sum of $111.13. DONE AND ENTERED this 9th day of October, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 9th day of October, 2006. COPIES FURNISHED: Jennifer Sullivan 38618 Kapok Avenue Zephyrhills, Florida 33542 Matthew M. Deleo, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 James R. McDonough, Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rosa Carson, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563
