LOCAL 1593,

Charging Party,

v. CASE NO.: CA-97-093

HILLSBOROUGH TRANSIT AUTHORITY

(HILLSBOROUGH AREA REGIONAL

TRANSIT AUTHORITY),

Respondent.

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HILLSBOROUGH AREA REGIONAL TRANSIT AUTHORITY'S EXCEPTIONS TO HEARING OFFICER'S RECOMMENDED ORDER

COMES NOW, Respondent, Hillsborough Area Regional Transit Authority (hereinafter "Authority"), and pursuant to Rule 38D-15.002, Florida Administrative Code, hereby files its exceptions to the Hearing Officer's Recommended Order which issued on November 18, 1997. The Authority excepts as set forth below:

1. To the Hearing Officer's failure to find that the parties engaged in good faith collective bargaining regarding the management rights' clause and the past practice clause.

2. To the failure to find that the Union had the opportunity to make any proposals it desired with regard to the past practice provision, but that the Union did not offer a bargaining proposal in this regard.

3. To the failure to find that the Authority did not refuse any request to incorporate any past practice or prior settlement agreements in the collective bargaining agreement; but that the Union simply failed to request any such past practices being incorporated into the agreement. More specifically, the Union never asked to incorporate the grievance settlement involving the 400 series buses into the agreement.

4. To the failure to find that the right to subcontract is solely a management prerogative and therefore an inherent management right pursuant to Section 447.209, Florida Statutes.

5. To the failure to find that subcontracting is a management right analogous to establishing class size.

6. To the failure to find that the legislature has evidenced an intent to permit subcontracting by public employers.

7. To the failure to find that it is the Commission's policy to give effect whenever possible to a public employer's intent to contract out or privatize services. See Duval School District v. AFSCME, Council 79, 21 FPER 26231 (1995).

8. To the Hearing Officer's conclusion that subcontracting is a mandatory subject of bargaining.

9. To the failure to find that even if subcontracting is a mandatory subject of bargaining, the parties engaged in good faith bargaining and lawfully submitted the issue to the legislative body for resolution.

10. To the failure to find that even if subcontracting is a mandatory subject of bargaining, subcontracting language can be imposed as part of the statutory impasse procedure.

11. To the finding that "by imposing this management rights' article, the Authority has given itself the right to make unilateral changes to a mandatory subject of bargaining." (HORO, page 13).

12. To the finding or conclusion that the "Authority has caused Local 1593 to waive its right to bargain collectively on a mandatory subject." (HORO, page 13).

13. To the finding or conclusion that the Authority's imposition of the management rights' article with the subcontracting clause is an unfair labor practice. (HORO, page 13-14).

14. To the failure of the Hearing Officer to find that even if subcontracting is a mandatory subject of bargaining, that in view of the parties' bargaining in good faith on that issue, the Employer had the right to legislatively resolve the language in question.

15. To the Hearing Officer's finding or conclusion that the past practice provision in dispute "is not a wage, hour or term and condition of employment." (HORO, page 14).

16. To the Hearing Officer's conclusion that the past practice clause "is not a mandatory subject of bargaining and cannot be imposed unilaterally by legislative action." (HORO, page 14).

17. To the Hearing Officer's finding that the Authority's imposition of the past practices article is an unfair labor practice. (HORO, page 14).

18. To the Hearing Officer's failure to find that the past practice provision is a mandatory subject of bargaining.

19. To the failure of the Hearing Officer to find that the past practice provision can be resolved by the legislative body as part of the statutory impasse procedure.

20. To the failure to find that the resolution of the past practice article was not an unfair labor practice.

21. To the failure to find that the Employer bargained in good faith regarding the past practice provision and that as a result, the Authority had the right to resolve the past practice provision in issue.

22. To the finding by the Hearing Officer that the Authority knew or should have known that the past practice article in question was not a mandatory subject of bargaining and therefore cannot be legislatively imposed. (HORO, page 15).

23. To the finding or conclusion that Local 1593 is entitled to reasonable attorney's fees and costs for the portion of the charge involving the past practice article. (HORO, page 15).

24. To the conclusion of law that subcontracting is a mandatory subject of bargaining. (HORO, page 16).

25. To conclusion of law number 5 that by imposing the management rights' article, the Authority violated the Act, because the clause regarding subcontracting waived the bargaining unit employees' collective bargaining rights.

26. To conclusion of law number 6 that the imposition of the past practices article violated the law.

27. To the conclusion of law that Local 1593 is entitled to an award of attorneys' fees and costs for the portion of the charge pertaining to the past practices article.

28. To conclusion of law number 8 that the Authority is not entitled to an award of attorneys' fees and costs.

29. To any recommended order based upon the finding that the Employer violated the Act in any fashion.

30. To the failure of the Hearing Officer to conclude that the Union failed to establish that the Authority violated the Act by resolving the management rights' clause and the past practice clause.

31. To the failure to find that the management rights' clause does not constitute the unilateral imposition of an unlawful waiver.

32. To the failure of the Hearing Officer to find that the past practice clause as resolved by the legislative body does not constitute the unilateral imposition of an unlawful waiver.

33. To the failure to find that the Union failed to establish a violation of the Act.

34. To the failure to find that the Authority did not violate Section 447.501(1)(a) and (c) by its resolution of the management rights' clause or the past practice clause.

35. To the failure to find as a conclusion of law that subcontracting is an inherent management right which is not a mandatory subject of bargaining.

36. To the failure to award the Authority its fees and costs as prevailing respondent.

Dated: October 30, 1998 Respectfully submitted,

Mark E. Levitt, Esquire

Florida Bar No. 193190

ALLEN, NORTON & BLUE, P.A.

324 South Hyde Park Avenue, Suite 350

Tampa, Florida 33606

Tel: (813) 251-1210

Fax: (813) 253-2006

Attorney for Employer

I HEREBY CERTIFY that the original and one copy of the foregoing has been furnished via hand delivery to: Stephen A. Meck, General Counsel, Public Employees Relations Commission, Koger Executive Center, Turner Building, Suite 100, 2586 Seagate Drive, Tallahassee, FL 32301-5032 and a copy sent via United States Mail to Frank Hamilton, III, Esq., 2620 West Kennedy Boulevard, Tampa, FL 33609, on October 30, 1998.

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Attorney