Applying City of Tallahassee and its progeny, PERC and the courts have held a large number of items to be mandatory subjects of bargaining under PERA. See, generally, Vause, The Good Faith Obligation in Public Sector Bargaining - Uses and Limits of the Private Sector Model, 19 STETSON L. REV. 509, 530-3 )7 (1990) (hereinafter "Vause, Public Sector Bargaining",).⁽⁴⁾ This is particularly true where, as here, the purpose behind subcontracting is to minimize labor costs. Fibreboard Paper Products Corp. v. NLRB, 3 )79 U.S. 203, 213-14 (1964).

In that case, the U.S. Supreme Court, construing the National Labor Relations Act upon which PERA is patterned,⁽⁵⁾' held that subcontracting which is motivated by economic issues is "peculiarly suitable" to collective bargaining:

"The Company was concerned with the high cost of its maintenance operation. It was induced to contract out the work by assurances from independent contractors that economies could be derived from reducing the workforce, decreasing fringe benefits, and eliminating overtime payments. These have long been regarded as matters peculiarly suitable for resolution within the collective bargaining framework, and 'industrial experience demonstrates that collective negotiation has been highly successful in achieving peaceful accommodation of the conflicting interest."

79 U.S. at 213-214.⁽⁶⁾ Such is the case here.

The decision to subcontract ATU 1593's bargaining unit work by HARTline must be considered a mandatory subject of bargaining because it is prenused upon replacement of bargaining unit workers with non-bargairiffig unit workers in order to lower costs. HARTline Executive Director Sharon Dent admitted as much in her memorandum to the HARTline Board in support of imposition of an unlimited subcontracting provision. Ms. Dent specifically asked the Board to adopt the unlimited provision because, to do otherwise, would

limit the Authority's ability to privatize portions of existing and future service and work and, accordingly, adversely impact the ability to address the size and scope of the workforce as a cost saving 9ption.... The recognized purpose of subcontracting is to effectuate substantial cost savings as well as to provide more efficient service which would be in the best interest of the citizens of Hillsborough County who pay the taxes to support the service and who utilize the service.

R.81-82, emphasis added).⁽⁷⁾

2. Public policy does not require rejection of Fibreboard's rationale.

Moreover, in its brief to PERC, HARTline also referred to an amorphous "public policy" in favor of subcontracting (R.209-10), citing § 20.315, Fla. Stat. (1997), relating to Florida Department of Corrections subcontracting, and § 14.203, Fla. Stat. (1997), relating to the Florida Competitive Bidding Council. Interestingly, the two referenced statutes speak to subcontracting when it would be cost-efficient to do so. For example, § 20.315(13), Fla. Stat. (1997), states

"Purchase of Services. Whenever possible the Department [of Corrections], in accordance with the established program objectives and performance criteria, may contract for the provision of services by counties, municipalities, non-profit corporations, and other entities capable of providing needed services, if services so provided are more cost-effcient, cost-effective, or timely than those provided by the department or available to it under existing law. [Emphasis added].

Similarly, § 14.203(3)(f), Fla. Stat. (1997) states:

In determining whether an identified state service should be submitted to competitive bidding, the Council shall consider, at a minimum: ... [t]he cost of supervising the work of any private contractor [and t]he total costs to the state agency of such state agency's performance of the service, including all indirect costs related to that state agency and costs of such agencies as the Comptroller, the Treasurer, the Attorney General, and other such support agencies to the extent such costs would not be incurred if a contract is awarded Costs for the current provision of the service shall be considered only when such costs would actually be saved if the contract were awarded to another entity. [Emphasis added].

Thus, the only evidence and argument of record on the issue of subcontracting ATU 1593 bargaining unit work is that it would substantially be motivated out of economic factors, including comparison of the cost of such work and the cost of purchasing such services in the private sector. Applying the Fibreboard rationale, this Court should reverse the PERC majority and hold that HARTline's decision to subcontract ATU 1593 bargaining unit work is a mandatory subject of bargaining, because it is motivated by economic factors that are "peculiarly suitable" to collective bargaining.

It is important to recognize that subcontracting of ATU 1593 bargaining unit work does not constitute a fundamental change in the nature of HARTline's business. HARTline is still the regional transit authority and is still charged with providing mass transportation to the Hillsborough area region. By subcontracting, HARTline would merely seek to lower its labor costs by having persons outside the bargaining unit perform bargaining unit work. By "peculiarly suitable" to collective bargaining, the Supreme Court presumably intends that a union have an opportunity to make contract proposals that address the employer's economic concerns by, possibly, offering to accept a wage freeze or wage cut for some period of time or some other, more constructive solution that does not directly harm bargaining unit members.⁽⁸⁾ Consequently, applying Fibreboard this Court should hold that an economically-motivated decision to subcontract bargaining unit work is a mandatory subject of collective bargaining.

B. Most other states addressing the issue have held that subcontracting is a mandatory subject of collective bargaining.

Florida should follow the majority of states having ruled on the matter and hold subcontracting to be a mandatory subject of collective bargaining.⁽⁹⁾ Thirty-two states have some form of Public Employee Relations Act: Alaska⁽¹⁰⁾; California⁽¹¹⁾; Connecticut⁽¹²⁾; Delaware⁽¹³⁾"; Florida; Hawaii⁽¹⁴⁾"; Illinois⁽¹⁵⁾; Iowa⁽¹⁶⁾; Kansas⁽¹⁷⁾; Maine⁽¹⁸⁾; Maryland⁽¹⁹⁾; Massachusetts⁽²⁰⁾"; Michigan⁽²¹⁾; Minnesota⁽²²⁾; Missouri⁽²³⁾; Montana⁽²⁴⁾; Nebraska⁽²⁵⁾; New Hampshire⁽²⁶⁾; New Jersey, New Mexico⁽²⁷⁾; New York⁽²⁸⁾; Ohio⁽²⁹⁾; Oregon; Pennsylvania⁽³⁰⁾ Rhode Island⁽³¹⁾; South Dakota⁽³²⁾; Tennessee⁽³³⁾"; Texas⁽³⁴⁾; Vermont⁽³⁵⁾; Washington⁽³⁶⁾; and Wisconsin. Of these, only 18 are roughly comparable to Florida: California; Connecticut; Delaware; Illinois; Maine; Massachusetts; Michigan; Minnesota; Missouri; Nebraska; New Hampshire; New Jersey; New Mexico; New York; Ohio; Pennsylvania; Washington; and Wisconsin.⁽³⁷⁾ Nine of these 18 states have ruled that subcontracting is a mandatory subject of collective bargaining, many of them citing Fibreboard, for this proposition;⁽³⁸⁾ three have ruled that it is not;⁽³⁹⁾ and the remaining six do not appear to have ruled on the issue.

1. This Court should adopt Fibreboard as have most of the states with similar PERAs.

As Commissioner Gertz points out in her dissent, the New Jersey decision that the PERC majority adopted is the rminority view among states having ruled on the issue of the negotiability of subcontracting. (R-267; cf., Local 195, IFPTE v. New Jersey, 443 A.2d 187, 194-95 (N.J. 1982)). Instead, this Court should reverse the decision and follow the majority of sister jurisdictions that have addressed the issue, such as Michigan.

For example, in Michigan's Van Buren School District v. Wayne County Circuit Judge, 232 N.W.2d 278, 90 LRRM 2615 (Mich. Ct. App. 1975) decision, the court relied almost exclusively on Fibreboard for the proposition that, when an employer seeks to subcontract bargaining unit work in order to save money, it is a mandatory subject of bargaining. 90 LRRM at 2621. The Van Buren court noted that it was appropriate to follow Fibreboard because of the large number of factual similarities between the two, the essential similarity being that the employer sought to subcontract in order to save money. Id. Such is the case here, where HARTline's Executive Director has admitted that the reason for subcontracting is to cut costs (R.8 1-82).

Moreover, the Van Buren decision, which involved a school board's decision to subcontract its school bus service followed Fibreboard's three-part test to determine whether a topic is a mandatory subject of bargaining:

1) the decision to subcontract does not alter the employer's basic operation

2) there is no capital investment or recoupment; and

3) the employer's freedom to manage its business would not be significantly abridged by requiring bargaining.

Id. at 2622.

As to the first item, the Van Buren court noted that the school board's basic operation would not change under a subcontract, because "busing of students [would still be] carried out in the Van Buren school district. Van Buren remains responsible, even with [the subcontractor] operating the transportation system, for the busing of the students." Id. at 2622-23. This is obviously similar to the HARTline situation where, regardless of whether HARTline were to subcontract a portion of the work to a private entity, HARTline would still ultimately be responsible for delivering mass transportation services to the Hillsborough area region.

Similarly, the Van Buren court held that the decision to subcontract "satisfied the second [Fibreboard] test, because it merely replaced existing employees with those of the independent contractor to do the same work under similar conditions and did not recoup any capital investment." Id. at 2623. Such would also be the case with HARTline, where the work sought to be subcontracted out is work that currently falls within the scope of the ATU bargaining unit. (See, e.g., R.81-82, 101-19).

Last, the Van Buren court held that "requiring the employer to negotiate over subcontracting would not "unduly restrict" the school district's right to manage its business." Id. at 2623. In this regard, the court noted that, since the Michigan PERA obligation to bargain does not include the obligation to accept any particular proposal (Mich. Comp. Laws § 423.215), this obligation would not hamper the school district's ability to decide whether to subcontract; it would merely give the bargaining unit workers the opportunity to provide an alternative to subcontracting. Id. at 2623.

This rationale would apply with equal force to Florida, where the parties are not required to accept any particular proposal or make any particular concession, (§447.203(13), Fla. Stat. (1997)), and would afford Florida public employees the opportunity to bid for the work. In this regard, please recall that, if the parties do not eventually agree, the public employer's legislative body would decide, what the appropriate resolution should be, notwithstanding the public employee union's collective bargaining positions to the contrary. Thus, Florida should follow the rationale of the Michigan courts and the United States Supreme Court, and hold that decisions to subcontract for economic reasons are mandatory subjects of bargaining.

2. PERC improperly adopted New Jersey's subcontracting rationale, because New Jersey public-sector labor law is too different from Florida's.

In the decision below, PERC's majority adopted the rationale of the New Jersey Supreme Court in Local 195 IFPTE, v. New Jersey, 443 A.2d 187 (N.J. 1982) (hereinafter "Local 195"). In Local 195 the New Jersey Supreme Court recognized that it is in the minority of states having ruled on the issue, but held that subcontracting is not a mandatory subject of bargaining. Id. at 194-95. The PERC majority adopted the New Jersey Supreme Court's three-part test for determining whether a subject is mandatory or permissive:

1. The item intimately and directly affects the work and welfare of public employees;

2. The subject has not been fully or partially preempted by statute or regulations; and

3. A negotiated agreement would not significantly interfere with the determination of governmental policy.

(R.249-50, citing Local 195 443 A.2d at 192).

It is worthwhile noting that the Local 195 court held that the decision to subcontract clearly meets the first two criteria articulated above, in that subcontracting (particularly subcontracting which would contemplate layoffs and the like) "intimately and directly affects the work and welfare of public employees", and that there did not appear to be preemption by New Jersey statute. 443 A.2d at 193-94. The ultimate decision, therefore, rested on whether being forced to bargain over subcontracting would "significantly interfere with the determination of governmental policy". Id. at 194. This test does not follow the majority view or Fibreboard, and seems to stem from the court's concern that the decision whether to subcontract had political ramifications, which would be better addressed in a political forum, rather than through collective bargaining. Id. at 191, 194-95. This was, the New Jersey court said, because bargaining could lead to the possibility of labor arbitration and the court did not want an arbitrator deciding state policy. Id. at 194.

The PERC majority adopted this rationale in the instant case, focusing on Local 195's third factor: "whether negotiation on the substantive decision to contract or subcontract would significantly interfere with the determination of governmental policy". (R.253-54). The majority went on to state that

because the decision to subcontract is largely a political question properly addressed in a political arena following notice, we do not consider it to be well suited for collective bargaining. A public employer should have the authority to decide to change the "nature or direction7 of its business, and must be able to freely do so to restructure the organization of its operations.

(R.254). However, this reliance on New Jersey law is unsound, because the two states' PERAs are so very different.

On the one hand, New Jersey's scope of public sector negotiations is "more limited than in the private sector." Local 1954,443 A.2d at 191 (emphasis added). This is quite different from Florida law where, "with the exception of the right to strike, public employees do have the same right of collective bargaining as [is] granted private employees .... [and courts must ensure] that the constitutional right of all employees to bargain collectively is not abridged." City of Tallahassee v. PERC, 410 So. 2d 487, 490-91 (Fla. 1981) (emphasis added).

Similarly, under New Jersey law, topics are either mandatory subjects of bargaining or inherent management rights; there is no middle ground, i.e., no "permissive" subjects of collective bargaining. Local 195, 443 A.2d at 191 n.7 (". . . there are generally no permissive subjects of negotiation in New Jersey public employment.") This contrasts sharply with Florida law, in which there is a large number of recognized permissive subjects of bargaining.⁽⁴⁰⁾

This Court should not blindly adopt the rationale of another state's judicial opinion that is premised on that court's interpretation of a statute that is fundamentally different from our own. This is particularly true here, where Florida public employees have a fundamental constitutional night to bargain collectively. Art. 1, § 6, FLA, CONST.

3. Florida's PERA impasse procedures obviate the PERC majority's concern that subcontracting should be decided "in apolitical arena."

The PERC majority seems to share New Jersey's unsupported concern that the decision "to subcontract is largely a political question properly addressed in a political arena following notice ... [, that a] public employer should have the authority to decide to change the nature or direction of its business, and must be able to freely do so to restructure the organization of its operations." (R.264, citing Local 195 443 A.2d at 194). This stated concern makes the error of reliance upon the New Jersey decision abundantly clear.

The PERC majority and HARTline seem to forget that Florida's PERA sets forth a procedure by which the parties may resolve items over which they are negotiating but cannot otherwise agree. § 447.403, Fla. Stat. (1997). PERC's concern that the decision to subcontract may have political implications is addressed adequately by PERA's statutory impasse and legislative resolution procedures. Id. New Jersey has no such procedure.

Under PERA, if an item is characterized as mandatorily negotiable, then either party may force the other party to bargain collectively on that item. However, PERA provides that no party is ever required to agree to any particular proposal or to make concessions. Id. § 447.203(14). If the parties cannot agree on an item, then that item is submitted to Special Master proceedings. Id. § 447.403(3). Then, if the parties still cannot agree, the item is ultimately resolved by the public employer's legislative body. Id. § (4)(e).

All phases of this process - collective bargaining, impasse, and legislative resolution -- must occur at public meetings after due notice, i.e., in the "political arena". § 447.605(2), Fla. Stat. (1997). If the public does not like the action HARTline takes, the public may address it through the political process. Thus, the Commission's cited concern is obviated by the fact that unlike New Jersey's public sector negotiations process, Florida's procedure ends with legislative resolution of the contract term at a public hearing. Consequently, New Jersey law, upon which the PERC majority's decision so heavily relies, should not be applied to Florida.

II. PERC MISAPPLIED THE FLORIDA SUPREME COURT'S BALANCING-OF-INTERESTS TEST FOR DETERMINING WHETHER SUBCONTRACTING IS A MANDATORY SUBJECT OF COLLECTIVE BARGAINING

The Florida Constitution affords public employees a fundamental right to bargain collectively, which right may not be denied or abridged. Art. 1, § 6, FLA. CONST. Florida Statutes provide a concomitantly broad scope of bargaining: "wages, hours, and [all] terms and conditions of employment." § 447.309(l), Fla. Stat. (1997); City of Tallahassee v. PERC, 410 So. 2d 487, 491 (Fla. 1981). While Florida law also preserves certain inherent management rights to public employers, these are expressly limited to certain broad-brush policy-level decisions. § 447.209, Fla. Stat. (1997).

A. PERC was required to balance HARTline's interest against the broad constitutional presumption *in favor of collective bargaining.

Where, as here, an issue is claimed to be both a retained management night and a subject of mandatory bargaining, the Florida Supreme Court has adopted a balancmig test. Fraternal Order of Police, Miami Lodge 20 v. Citv of Miami, 609 So. 2d 31, 34 (Fla. 1992) (hereinafter "FOP Miami Lodge 20"). Even though that case turned more on drug testing than on the deterinination of whether a topic is a mandatory subject of bargaining, the court's analysis nonetheless inexorably leads to the conclusion that subcontracting must be considered mandatorily negotiable.

Under FOP Miami Lodge 20's balancing test, PERC was required to weigh whether the subject of bargaining is "a critical managerial decision which fundamentally impacts upon the [public employer's] functioning". Id. at 35. If so, then the item is a retained management right which the employer may impose unilaterally. If not, then the public employer must bargain over the issue.

This balancing of interests should be examined through two lenses: the nature of the interests involved and whether bargaining would prevent the timely provision of services to the public for which the public employer exists. In the context of for-cause drug testing of police officers, the court stated

We find that the facts as presented in the instant case clearly affect the integrity of the police and their ability to protect the public. Since public safety and protection are the City of Nfiami's direct responsibility, circumstances that affect these responsibilities are management prerogatives. Public safety and protection cannot wait for a bargaining session under these circumstances.

Id. at 34-35.

In FOP Miami Lodge 20, management could unilaterally impose for-cause drug testing of "identified police officers, who had allegedly committed drug offenses", Id. at 35, in the course of their daily work ("where there is some evidence of drug involvement by specific officers", Id. at 3 )2), because of the potential for extreme adverse consequences both to the public (through injury by chemically impaired police officers) and to the ability of the department to serve the public (through, among other things, the loss of public confidence in the department as a result of harboring known law breakers on the force). Id. Simply stated, the court held that the police force's interest in the integrity of its officers, who regularly exercised their independent discretion in enforcing public safety laws, was of such a fundamental nature that the police force could not operate without the reserved management right to test identified police officers suspected of using illegal drugs. Id. at 35. Only an interest of a similarly fundamental nature would suffice to counterbalance the presumption that subcontracting, as a term and condition of employment,⁽⁴¹⁾ is a mandatory subject of collective bargaining.

B. Only an "overriding need" to subcontract will defeat the presumption of mandatory negotiabilitv.

The Florida Supreme Court was quick to point out the narrow application of its FOP Miami Lodge 20 holding..

"We emphasize that our holdmig allowing testing in this instance does not mean we are holding that public employers of public safety personnel have the managerial prerogative to require random drug testing of all public safety personnel. That type of testing does, in our view, require collective bargaining unless the legislature addresses it specifically. Our decision allowing testing in this circumstance is narrow and is based on an overriding need to protec the public."

609 So. 2d at 35 (emphasis added). The "overriding need" of maintaining public safety was balanced against the Florida Constitution's presumption of mandatory bargaining over terms

and conditions of employment. Simply put, in that case, there was no less restrictive means to insure public safety without the ability to test "identified officers" suspected of illegal drug use in a timely fashion.

However, in the present case, the issue of subcontracting does not so fundamentally impact upon HARTline's functioning that it should be reserved to management to decide unilaterally. There is no "overriding need" for HARThne to engage in subcontracting in order to accomplish its raison d'etre. Like the school board in Van Buren, HARTline can provide adequate bus service to the public without subcontracting, as it has for the many years of its existence.

This does not mean that the parties may not bargain over the issue; that is what characterizing subcontracting as a mandatory bargaining issue is about. Instead, it means that the issue of subcontracting bargaining unit work must be the subject of mandatory collective bargaining, which the Union may not be forced to waive. Additionally, since HARThne has asserted several times that "no decision has been made to subcontract", (see. E.g., R.209- 10), any delay related to having to bargain over subcontracting would not affect HARTline's ability to engage in its core function of providing bus service to the public. Moreover, since state and federal funds are involved, there are delays inherent in any subcontracting decision, Thus, under the FOP Miami Lodge 20 balancing-of-interests test, subcontracting must be the subject of mandatory collective bargaining.

C. Since HARTline has no "overriding need" to subcontract in order to carry out its mission, subcontracting is a mandatoly subject of bargaining.

HARTline does not have a significantly compelling interest i.e. an "overriding need", that outweighs ATU 1593's members' constitutional rights to bargain collectively over matters affecting their terms and conditions of employment. While HARTline has urged, without supporting authority, and the PERC majority has written, with only a mmiority-view New Jersey decision as support, that some inherent right to subcontract lurks 'in the management rights language of PERA, "to set standards of service to be offered to the public and exercise control and discretion over its organization and operations" (§ 447.209, Fla. Stat. (1997)), this suggested reading twists the plain meaning of the statute's terms.

It is HARTline's inherent management right to determine what work will be performed. This is a political decision more properly suited to the political arena, in the words of the PERC majonity. However, who performs this work is not a political question; particularly when the decision to subcontract bargaining work is motivated out of cost concerns, it is one that is "peculiarly suitable" to collective bargaining.⁽⁴²⁾ As discussed above, if financial concerns motivate management's decision to subcontract, management should be forced to give the Union an opportunity to make proposals to address those financial concerns,

Subcontracting is not about whether HARTline should increase or decrease levels of bus service; it is not about what areas the buses will service, determining staffing levels, or fixing the number of passengers to be served by each bus driver; indeed, it is not about discontinuing bus service entirely or in part. Instead, subcontracting is about taking bargaining unit work away from bargaining unit members who are available to perform the work, and having the work performed by non-bargaining unit members. As a result, under FOP Miami Lodge 20's balancing-of-interests test, PERC should have held that subcontracting is a mandatory subject of collective bargaining.

If the non-bargaining unit members performing the "subcontracted" work were also employees of HARTline's, PERC would likely find that HARTline committed an unfair labor practice; at a minimum, such a decision to transfer bargaining unit work to non-bargaining unit personnel would trigger a bargaining obligation. Cf. Pensacola Junior College Faculty Ass'n v. Pensacola Junior College, 16 F.P.E.R. ¶ 21268 (PERC 1990) (charge dismissed on grounds the union waived right to bargain by inaction);⁽⁴³⁾ see also City of Monticello, 565 So. 2d at 366. To transfer bargaining unit work to non-employees should be no less unlawful.

Since HARTline has no "overriding need" to subcontract, since the decision to subcontract would not "fundamentally impacts upon the [HARTline's] functioning", 609 So.2d at 32, this Court should hold subcontracting to be a mandatory subject of collective bargaining, particularly where, as here, the decision to subcontract is motivated by economic concerns.

III. HARTLINE LEGISLATIVELY IMPOSED AN ILLEGAL WAIVER OF ATU 1593'S BARGAINING RIGHTS.

Irrespective of whether subcontracting is an inherent management right or a mandatory subject of collective bargaining, HARTline still committed an unfair labor

practice by legislatively imposing a waiver of ATU 1593's collectively bargained limits on HARTline's ability to subcontract. It is well-established that public employers may not, under the guise of "seeking recognition of management nights", legislatively impose a waiver of its public employees' constitutional right to bargain over wages, hours, and terms and conditions of employment. Palm Beach Junior College v. United Faculty of Palm Beach Junior College, 475 So. 2d 1221, 1225-27 (Fla. 1985).

This is what HARTline did, legislatively imposing unlimited subcontracting language in conjunction with expressing its intent to act unilaterally:

"Except as expressly limited by any provision of this agreement the Authority reserves and retains exclusively all of its normal and inherent rights with respect to its management of its operations, including, . . . [the right] to subcontract; . . . the Authority will exercise its rights set forth in this article consistent with Florida Statute [sic] § 447.209 and Florida Statute [sic] § 163).568."

(R. 189). HARTline admitted as much in its Answer to the underlying charge:

"5. The employer admits that the existing management rights clause contains language which limits the employer's ability to take certain action.

***

7. The employer admits that it proposed language which permitted subcontracting without limitation."

(R. 14). When a public employer legislatively imposes a term in which it reserves sole discretion to determine items which are otherwise the subject of collective bargaining, it effects a waiver of the union's right to bargain, even in the absence of specific waiver language. Communications Workers of America, Local 3170 v. Gainesville, 22 F.P.E.R. ¶ 27258, at 461 (drug testing case). As such, the imposed language constitutes an illegal waiver of the union's night to bargain.

This is especially true in light of the legislatively imposed past practices language (R.244), which purports to vitiate all former past practices not specifically provided for in the agreement. Since the past practices at issue included the limitation on the right to subcontract (which was arbitrated under the previous contract; R.81-82, 101-19), the two legislatively imposed terms effectively deny the Union its pre-existing, right to bargain meaningfully over subcontracting, thus working a waiver of bargaining rights. It is important to recognize that the imposed subcontracting article is nothing more

than HARTline's attempt to regain what it lost at the earlier bargaining table and subsequent arbitration. HARTline's Executive Director admits as much:

"I want to remind you that the language that limits subcontracting has only been in the contract since the beginning of this existing contract. My recommendation is to revert to the pre-October 1, 1992 language."

(R.83). Reading, between the lines, one reason why HARTline sought to change the subcontracting term is the fact that HARTline lost a grievance arbitration construing the old language. (R.81-82). The arbitrator held that, because of the limiting language in the old management rights article, HARTline could not subcontract with a private company to provide bus service in territory or routes which were historically serviced by bargaining unit drivers and HARTline buses. (R.101-19). The language of the legislatively imposed management rights subcontracting terms effectively negates the arbitrator's decision, taking away (i.e., "waiving") the collectively bargained limitation, under the guise of "retaining"

management rights.

In agreeing to the limiting language of the "old" management rights provision, HARTline presumably obtained something from the Union as a quid pro quo. Having bargained for that provision, HARTline should not now be allowed to claim that the subcontracting item is one over which management need not bargain; HARTline should certainly not be able to unilaterally impose a waiver of ATU 1593's bargaining rights related to such subcontracting.

CONCLUSION

As discussed more fully above, PERC improperly held that HARTline had an inherent management right to subcontract, and that HARTline therefore acted lawfully when it legislatively imposed such a term in a management rights provision of the collective bargaining agreement. In finding, that subcontracting is not a mandatorily negotiable item, PERC adopted a minority view, and rejected both U.S. Supreme Court precedent construing the law upon which PERA is patterned and the decisions of the majority of other states containing PERAs similar to Florida. This Court should correct that error, and follow the better reasoned opinions of the majority of states having ruled on the issue, such as Michigan, and hold that PERA requires public employers to negotiate over decisions to subcontract, particularly when those decisions are motivated out of economic concerns, as discussed in Fibreboard and Van Buren School District.

Alternatively, if this Court should agree with PERC that subcontracting is otherwise an inherent management right, this Court should still reverse PERC's determination that HARTline committed no unfair labor practice. HARTline had already engaged in bargaining on the subcontracting issue under the "old" contract. The management rights provision at issue, which imposes a unilateral, unlimited right to subcontract, effectively imposes a waiver of ATU 1593's collectively bargained subcontracting nights. As such, it amounts to an unfair labor practice under Palm Beach Junior College.

Consequently, this Court should reverse PERC's decision with respect to the subcontracting issue, and remand the matter for further proceedings.

Dated: October 5, 1998

Respectfully submitted,

FRANK HAMILTON & ASSOCIATES, P.A.

Frank E. Hamilton, III

Fla. Bar No. 147112

Christopher M. Shulman

Fla. Bar No. 955980

2620 W. Kennedy Blvd.

Tampa, FL 33609

813/879-9842 (ph)

813/871-6215 (fax)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true copies of the foregoing were served today, this 5^th day of October, 1998 by U.S. Mail on the following: Stephen A. Meek, General Counsel, Public Employees Relations Commission, Koger Executive Center, Turner Building, Suite 100, 2586 Seagate Drive, Tallahassee, FL 32301-5032; Mark E. Levitt, ALLEN, NORTON & BLUE, P.A., 324 S. Hyde Park Ave. 43350, Tampa, FL 33606; and Thomas W. Brooks, MEYER AND BROOKS, P.A., Post Office Box 1547, Tallahassee, FL 32302-1547.

Christopher M. Shulman