STATE OF FLORIDA

PUBLIC EMPLOYEES RELATIONS COMMISSION

 

DISTRICT 2A, TRANSPORTATION, TECHNICAL, WAREHOUSE, INDUSTRIAL AND SERVICE EMPLOYEES UNION, AFFILIATED WITH AMERICAN MARITIME OFFICERS, Charging Party,

v.

CANAVERAL PORT AUTHORITY, Respondent.

 

Mark F. Kelly, Tampa, attorney for charging party.

Jesse S. Hogg, Coral Gables, attorney for respondent.

 

Case No. CA-2000-008

 

FINAL ORDER

Order Number: 00U-148

Date Issued: August 15, 2000

 

On February 4, 2000, District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, affiliated with American Maritime Officers (District 2A) filed an unfair labor practice charge alleging that the Canaveral Port Authority (CPA) violated Section 447.501(1)(a), (b), and (c), Florida Statutes, by: (1) imposing a restrictive arbitration clause after impasse; (2) refusing to deduct from the pay of participating bargaining unit employees (check-off) for the District 2A's political action fund; and (3) allowing an employee to solicit decertification while prohibiting solicitation on behalf of District 2A by another employee. The Commission's General Counsel found the charge sufficient and a hearing officer was appointed.

After an evidentiary hearing, the hearing officer issued her recommended order on May 15. The hearing officer concluded that only the issue concerning imposition of a restrictive arbitration clause was an unfair labor practice, but because the issue was one of first impression, that District 2A should not be awarded attorney's fees and costs. The hearing officer declined to award the CPA its attorney's fees or costs for the two issues upon which it prevailed.

After the granting of an extension of time, both parties have filed exceptions to the hearing officer's recommended order. After the granting of another extension of time, the CPA filed a response to District 2A's exceptions. A hearing transcript has been filed.

The relevant facts concerning the arbitration clause issue are as follows. The parties began negotiations for their first collective bargaining agreement on October 14, 1998. In November and December 1998, District 2A tentatively agreed to an arbitration clause posed by the CPA. That clause is the same one in controversy in this case and it was part of an agreement rejected in a ratification vote in April 1999 by the bargaining unit employees represented by District 2A. In May 1999, District 2A withdrew its tentative agreement to the clause because negotiations were deadlocked over economic issues.

District 2A declared impasse in May 1999. The issue of the wording of a griev­ance arbitration clause was presented to a special master, along with other issues. District 2A's proposal was an abbreviated version of the one to which it had previously agreed. The CPA's proposal to the special master was the entire arbitration proposal previously agreed upon by District 2A.

The proposal presented to the special master by District 2A is as follows ("short version"):

 

ARBITRATION

A.  Right to Arbitrate. In the event the grievant is not satisfied with the resolution of any grievance in the grievance procedure, the grievant may request arbitration of that grievance by submitting such a request, in writing, to the CPA's designated representative, provided that such request must be presented to the designated representative within ten (10) calendar days following the date when the grievance was answered in Step 3 or, if no answer was given, following the date when the time for the Step 3 answer expired.

B.  If arbitration is requested and agreed to, then the CPA or the Union may, at any time thereafter, write to the Federal Mediation and Conciliation Service, requesting a list of seven (7) arbitrators.

1.   Each party shall have the right to reject one such list of arbitrators in its entirety.

2.   When a list has been accepted, the grievant will strike one name from the list as being unacceptable. The parties will continue to alternately strike names until only one name remains, and that name shall be selected as arbitrator.

3.   Either party may then notify the selected arbitrator by letter of his selection, requesting the arbitrator to contact the parties' representatives to arrange for further proceedings.

4.   The arbitration shall not be deemed to be conducted under either the federal arbitration statute or any state arbitration statute unless the parties so agree.

5.   The arbitrator shall be empowered to make such fair and reasonable procedural orders as may be necessary to the orderly and expeditious resolution of the grievance, but he/she shall, at all times, have due regard for the CPA's operational needs and requirements.

6.   The arbitration hearing shall not be conducted on the CPA's premises except by its consent, but shall be conducted on those premises if the CPA so requests.

 

The proposal presented to the special master by the CPA includes the foregoing paragraphs as well as the following ("long version"):

 

C.  Arbitrator's Authority. The arbitrator shall:

1.  Have no authority to add, to subtract from, modify, alter or change any of the terms or provisions of this Agreement, nor to render any decision that is inconsistent with said terms or provisions.

 

2.  Be required to write an opinion explaining his/her reasons for rendering any decision contrary to the CPA's conten­tion(s).

 

3.  Be confined to interpreting this Agreement and deciding the grievance accordingly.

 

4.  Rule on any question of arbitrability prior to the hearing date if requested to do so by any party.

 

5.  Refrain from relying on any concepts or ideas of "industrial justice" or social justice" or "law of the shop" that do not find expression or support in this Agreement.

 

6.  Accept and decide the grievance on the basis of a submission agreement in lieu of a hearing, if such an agreement is offered. The parties shall be obliged to make a good faith effort to agree on such an agreement if either so requests.

 

7.  Refrain from ordering the establishing of any new wage rates or new jobs.

 

8.  In discharge and discipline cases, refrain from requiring progressive discipline or ruling against the Employer because there was no progressive discipline, although the arbitrator is empowered to determine whether the discipline imposed was excessive under the facts.

 

9.  Have authority to order a discharged or suspended employee reinstated without or with limited monetary compensation, or to order limited compensation without reinstatement.

 

10.  Refrain from ordering the payment of interest, costs, damages or expenses, in addition to back pay.

 

11.  Require any employee claiming monetary loss to provide complete evidence of all earnings or income pertaining to any relevant period of time and credit the CPA with same.

 

12.  Refrain from imposing upon the CPA any monetary liability with reference to any period of delay in completing the arbitration process that is not attributable solely to the CPA.

 

D.  One Issue Per Arbitrator. No arbitrator may have under consideration more than one grievance at a time involving the CPA without the CPA's consent.

 

E.  Loser Pays. Each party shall bear its own expense of preparing for and participating in the arbitration process. The arbitrator's charges shall be paid in total by the losing party, if there clearly is a losing party, otherwise it shall be borne 2 by the CPA and 2 by the Union.

 

F.  Retroactivity. In no event shall any award against the CPA be retroactive to any date more than three (3) calendar days prior to the date when the grievance was filed.

 

G.  Employee cooperation. Each unit employee has an obligation to make available to the CPA any information of which the employee is aware, including rumors and hearsay, concerning any matter that is the subject of an employee complaint, grievance or arbitration, as well as any information concerning any violation of work rules, safety rules or personnel policies, whether related to a particular employee complaint, grievance or arbitration or not.

 

H.  Finality. An arbitrator's award rendered under this Article shall be final and binding to the  extent, but only to the extent; required by the Florida Public Employees Relations Act, and the CPA shall have the maximum rights of judicial review that are consistent with that Act.

 

The special master specifically rejected the restrictions upon an arbitrator's authority included in the CPA's long version proposal. Specifically, the special master stated:

 

In attempting to resolve this issue, the special master recognized the long­-established tradition of arbitration to resolve labor-management griev­ances. Further, he took note that both parties have agreed that their arbi­trators will come from the Federal Mediation and Conciliation Service. (The FMCS keeps lists of professionally qualified neutrals who subscribe to professional standards of good arbitral procedure and technique).

 

Because the parties have agreed to the FMCS as a credible source of arbitrators, the special master believes that [the CPA's] "long" version... is unduly restrictive in defining an arbitrator's authority. The key to arbitra­tion is the impartiality of the arbitrator and the FMCS is [a] reputable source for gaining access to professional labor-management neutrals. Many of [the CPA's] apparent concerns about arbitration could be handled by noting in the contract that "The arbitrator shall not be empowered to alter, amend, add to, or eliminate any provisions of the collective bargaining agreement." And, as a general point, the notion that the "loser" will pay arbitration costs is not standard arbitration practice. More commonly, the parties split the cost of arbitration.

 

Accordingly, finding that he saw "no compelling reason to add complex arbitral provisions to the collective bargaining agreement," the special master recommended that the provision as suggested by District 2A should be approved, with language added that an arbitrator had no authority to add to or change the parties' agreement.

The CPA objected to the special master's recommendation of the short version of the arbitration clause to its legislative body (Board). Although the CPA agreed with District 2A before the special master and the Board that it could not impose the long version of the arbitration clause, the Board rejected the special master's recommendation concerning the wording of the arbitration clause. The Board resolved the issue in favor of the long version despite District 2A's argument that imposition of the CPA's longer version would constitute an unfair labor practice. Thereafter, the CPA presented a final agreement to District 2A that included the long version. The agreement was not ratified by the bargaining unit members.

District 2A has argued that the provisions of the CPA's arbitration procedure are so restrictive as to constitute a waiver of statutory rights. The hearing officer agreed and concluded that the long version of the arbitration clause, although initially agreed to by District 2A, violated the CPA's duty to bargain in good faith in violation of Section 447.501(1)(a) and (c), Florida Statutes, when imposed by the impasse procedure through Section 447.403(4)(e), Florida Statutes.^[1]

All of the CPA's exceptions, except for its exception one, pertain to its argument that the hearing officer improperly decided the first issue. Upon review, exception one is granted as to the correct title of the CPA's chief executive officer at the time of his testimony. However, the granting of that exception does not affect the merits of this case.

In exceptions two and three, the CPA argues that the hearing officer improperly found that the arbitration clause in question was the CPA's. These exceptions are denied. In the parties' stipulations on the record, they agreed that the arbitration provision was "proposed by the CPA." (T 23) Further, the record is clear that, before the special master and thereafter, the CPA argued for the long version of the arbitration provision and District 2A argued for the short version. Finally, it was the long version clause that was included in the agreement as resolved in impasse by the Board and sent to District 2A by the CPA.

In its exception four, the CPA argues that the hearing officer improperly states in her analysis portion that it was the CPA that declared impasse as inconsistent with the hearing officer's finding fifteen. The parties stipulated on the record that District 2A declared impasse, accordingly, finding fifteen is supported by competent substantial evidence. CPA's exception four is granted to the extent that it excepts to a contrary statement in the analysis portion of the recommended order. The granting of this exception, however, does not affect the outcome of this case.

In exception five, the CPA disputes the hearing officer's statement in the analysis portion of her recommended order that the CPA contended that District 2A forfeited its right to withdraw its agreement to the arbitration provision. In context, the hearing officer's statement is consistent with the CPA's statement in its post-hearing pleadings positing that District 2A complained about the imposition of an article it had previously agreed upon, thereby implying that such disagreement was somehow defective. Accordingly, the CPA's exception five is denied.^[2]

The CPA's exceptions six through twenty-one deal with the merits of the hearing officer's conclusion and analysis that imposing restrictions upon an arbitrator is an unfair labor practice. Specifically, these exceptions are as follows. In exceptions six and ten through twelve, the CPA argues that the hearing officer incorrectly concludes that such a provision is a permissive item of negotiation. In related exceptions nine and fifteen through eighteen, the CPA disputes the hearing officer's analysis as to the restrictive nature of the provision. In exceptions seven, eight, and thirteen, the CPA disputes the hearing officer's analysis concerning imposition by the legislative body. Finally, in exceptions nineteen through twenty-one, the CPA disputes the hearing officer's conclu­sions concerning unfair labor practice violations and her recommended remedy.

Subjects of collective bargaining, whether in the public or private sectors, are categorized as mandatory, permissive or unlawful. See generally W. Gary Vause, The Good Faith Obligation in Public Sector Bargaining-Uses and Limits of the Private Sector Model, XIX Stetson L. Review 511, 530-40 (1990) and cases cited therein. It is funda­mental, in both the public and private sectors, that permissive and unlawful subjects of bargaining may not be bargained to impasse, except by the agreement of both parties (even then, unlawful provisions are void as public policy). Id. at 516. It is therefore fundamental that a public employer may not attempt to impose a permissive subject of bargaining through legislative action pursuant to its authority to resolve impasse issues under Section 447.403(4), Florida Statutes. Palm Beach Junior College Board of Trustees, 475 So.2d 1221 (Fla. 1985), aff=q in part and rev'g in part 425 So.2d 133 (Fla. 1^St  DCA 1982), aff=g 7 FPER & 12300 (1981); see also W. Gary Vause, Impasse Resolutions in the Public Sector Bargaining-Observation on the First Decade of Law and Practice under PERA, 37 Florida L. Review 105, 168 (1985).

The CPA's exceptions concerning the arbitration clause require an analysis of the effect of Section 447.401, Florida Statutes, upon collective bargaining. Section 447.401 states in applicable part:

 

Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. Such grievance proce­dure shall have as its terminal step a final binding disposition by an impar­tial neutral, mutually selected by the parties... however, an arbiter or other neutral shall not have the power to add to, subtract from, or modify, or alter the terms of a collective bargaining agreement...

 

Section 447.201, Florida Statutes, states as follows concerning the Legislature's underlying policy in enacting the foregoing provision:

 

It is declared that the public policy of the state, and the purpose of this part, is to provide statutory implementation of Section 6, Article 1 of the State Constitution, with respect to public employees; to promote harmo­nious and cooperative relationships between government and its employees, both collectively and individually; and to protect the public by assuring, at all times, the orderly and uninterrupted operations and func­tions of government. It is the intent of the Legislature that nothing herein shall be construed as to encourage or discourage organization of public employees. These policies are best effectuated

 

(1) Granting the public employees the right of organization or representation;

(2) Requiring the state, local governments, and other public subdivisions to negotiate with bargaining agents duly certified to represent public employees;

(3) Creating a Public Employees Relations Commission to assist in resolving disputes between public employees and public employers; and

(4) Recognizing the constitutional prohibition against strikes by public employees and providing remedies for violations of such prohibition.

 

In reading Section 447.201 and 447.401 in pari materia, the Commission has stated the following regarding exclusion of contractual grievance procedures from a grievance arbitration provision in a collective bargaining agreement.

 

Section 447.201, Florida Statutes, declares that the public policy of the state is to promote harmonious relationships between public employers and their employees and to protect the public by assuring that govern­mental functions proceed uninterrupted by labor unrest. The requirement of resolving grievances through binding arbitration represents a legislative judgment that the goal of labor stability is significantly enhanced by mandating that parties to a collective bargaining agreement use such a procedure to resolve their disputes rather than resort to other, often more disruptive, means. See In re Levy County School Board, 5 FPER & 10213 (1979). This policy is undermined if the parties may effectively by-pass this grievance resolution mechanism by excluding the resolution of some disputes by binding arbitration. Such selective exclusion, even if agreed to by both parties, eliminates the orderly and binding resolution of disputes regarding the meaning or intent of the excluded contractual language. Consequently, rather than effectuating the state's clearly stated labor policy, the selective exclusion is more likely to spawn further discord by resorting to extra-contractual remedies for what would in reality be a contractual dispute. Such a result is plainly in conflict with the mandates embodied in Sections 447.201 and 447.401, Florida Statutes.

 

The apparent goal of an employer in seeking to exclude certain contrac­tual language from the grievance procedure, according to the [employer], is to provide contractual language for certain terms and conditions of employment, but to prevent an arbitrator from reviewing the correctness of "management decisions" with regard to these terms and conditions of employment. Under this theory, an employer would be able to negotiate working conditions in a collective bargaining agent [sic], incorporate the agreed-upon conditions in a collective bargaining agreement, and then retain the ultimate authority to determine what remedy, if any, is appro­priate if it breaches the agreement. Such a procedure directly conflicts with the legislative judgment that an impartial arbitrator is in a better posi­tion to fairly decide whether a contractual breach has occurred and what would constitute an adequate remedy.

 

In re Orange County Classroom Teachers Association, 7 FPER & 12179 at 401 (1981); see also, e.g.. Textile Workers Union v. Lincoln Mills 353 U.S. 443, 453-55 (1957) (it has long been held in the private sector that arbitration of disputes between employers and unions brings "industrial peace" and is quid pro quo for a no-strike provision in a collective bargaining agreement).

Since its landmark decisions in United Steel Workers of America v. Enterprise Wheel & Car Corporation, 363 U.S. 593 (1960); United Steel Workers of America v. Warrior & Gulf Navigation Company, 363 U.S. 574 (1960) and United Steel Workers of America v. American Manufacturing Company, 363 U.S. 564 (1960), collectively referred to as the Steel Workers Trilogy, the U.S. Supreme Court supported the concept of presumption of arbitrability in private sector labor relations. Arbitration is therefore preferred as it fosters "industrial peace" between labor and management without the unnecessary intervention of the courts or other outside entities.

 

A collective bargaining agreement is an effort to erect a system of indus­trial self-government ....[T]he grievance machine under a collective bargaining agreement is at the very heart of the system of industrial self­-government. Arbitration is the means of solving the unforeseeable by molding a system of private law for all of the problems which may arise and to provide for their solution in a way which would generally accord with a variant needs and desires of the parties.

 

Warrior & Gulf Navigation, 363 U.S. at 580; see also Republic Steel v. Maddox, 379 U.S. 650, 653 (1965) (contractual grievance procedures are the preferred means of resolving disputes and stabilizing relations between management and unions).

The Steel Workers Trilogy has been cited with approval both by the Commission and Florida courts in determining arbitrability questions. See, e.g., FOP Lodge 20 v. City of Miami, 378 So.2d 20, 23-24 (Fla.1st DCA 1979), cert. denied, 388 So.2d 1113 (Fla. 1980) (since Section 447.401 requires the inclusion of a grievance procedure which terminates an arbitration, the principles annunciated by the U.S. Supreme Court in the Steel Workers Trilogy are applicable in labor arbitration disputes); Boynton Beach Association of Firefighters, Local 1891 v. City of Boynton Beach, 14 FPER & 19149 at 377-78 (1988) (citing Warrior & Gulf Navigation concerning the presumption of arbitrability).

Contrary to the CPA's argument, there is a "standard arbitration clause" that is uniformly utilized by parties to a collective bargaining agreement. It is one without numerous restrictions upon the use of arbitration and the remedy that can be imposed. Robert A. Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining, at 556 (1976). It is the exception rather than the rule when parties have endeavored "to hedge the authority of the arbitrator... [resulting] in highly elaborate exclusion clauses which, as one court has said, 'resemble a trust indenture."' Id. This standard version of arbitration clause provides for arbitration of all grievances relating to the "meaning and interpretation and application of the provision of this [collective bargaining] agreement." Id. at 558; see also Clark A. Nichols, 5A Nichols Cyclopedia of Legal Forms Annotated, Labor Unions, ' 5.3662 (1992 rev.); 10A Am Jur. Legal Forms 2d Labor and Labor Relations, ' 159:145 (1996 rev.); 26 West's Legal Forms, Alternative Dispute Resolution: Labor and Employment Disputes, ' 11.30 (1995) (form books providing standard arbitration clauses that neither limit an abitrator's authority nor arbitration remedies nor issues that may be presented  an arbitrator).

Limitations upon arbitrators and arbitrators' remedies, in addition to not being included in a "standard" arbitration clause, may result in an arbitration clause being deemed to be unenforceable because of the unusual nature of the limitations upon arbitration. E.g., Paladino v. Avnet Computer Technologies, Inc., 134 F. 3d 1054, 1061­-62 (11^th Cir. 1998) (when mandatory arbitration nonetheless "plainly circumscribes the arbitrator's authority to grant relief' such an arbitration clause is unenforceable in the context of an employee's statutory claims, such as discrimination).

In addition to raising an issue as to their enforceability, certain provisions such as "loser pays" are considered to be contrary to good arbitration practices.

 

Arbitration costs, except for counsel fees, generally are shared by the parties. Even where the parties have reached no agreement as to costs, arbitrators have required equal division since such "is common practice in arbitration." Occasionally the collective bargaining agreement will provide that the loser in arbitration shall pay all of the costs. This is contrary to the recommendation of the President's National Labor Management Conference that the cost of the neutral "should be shared equally by both parties." It is highly undesirable from the standpoint of the arbitrator and, it would seem, from the standpoint of the best interest of the parties.

Elkouri & Elkouri, How Arbitration Works at 25 (5^th Ed. 1997) (footnotes omitted).

Accordingly, consistent with good practices as well as uniform practice, the special master in the instant case stated unequivocally in resolving the issue of whether the "long" version or "short" version of arbitration was applied that, "more commonly, the parties split the cost of arbitration." (Joint Exhibit 7); see also 26 West's Legal Form ' 11.21 at 667 (1995) (model resolution of an impasse in an arbitration clause wording, recommending that the parties share equally the cost of arbitration consistent with the generally recommended practice in arbitration).

The Commission and courts have uniformly held that the exemption of contractual disputes from a collective bargaining agreement's grievance procedure would constitute a partial waiver of the statutory right provided by Section 447.401 and that such a waiver couched in a proposal from management is a permissive item of bargaining which may not be imposed by the impasse procedure. United Faculty of Palm Beach Junior College v. Palm Beach Junior College Board of Trustees, 10 FPER & 15225 at 458-59 (1984), affd, 468 So.2d 1089 (Fla. 4^th DCA 1985); City of Casselberry v. Orange County PBA, 482 So.2d 336 (Fla. 1986), approving in part and quashing in part, 457 So.2d 1125 (Fla.  1^st DCA 1984), rev'q 9 FPER &  14120 (1983). By analogy, the Commission concludes that the hearing officer was correct in analyzing the arbitration provision which the CPA attempted to impose as much more stringent than the standard arbitration clause and that the restrictions therein constitute a waiver sought to be imposed by the CPA and would therefore constitute an unfair labor practice.

A breach of a bargaining agreement has been long held by the Commission to be an unfair labor practice as an unlawful unilateral change in the terms and conditions of employment of bargaining unit members within the meaning of Section 447.501(1)(a) and (c), absent certain affirmative defenses. See, e.q., Palowitch v. School Board of Orange County, 3 FPER 280 (1977), aff=d, 367 So.2d 730 (Fla. 4^th DCA 1979) (a violation of the status quo, whether set by either the collective bargaining agreement or by past practice, is an unfair labor practice). The Commission in Palowitch and subse­quent unilateral change cases cite similar law in the private sector. See, e.g., Pinellas, County PBA v. City of St. Petersburg, 3 FPER 205, 206 (1977) as cited in Palowitch, 3 FPER at 281-82.

The practical consequences of the limitations upon the procedural arbitration, as well as limitations upon remedies, contained in the "long" arbitration version is that District 2A may be able to more effectively litigate and remedy unlawful unilateral changes in the status quo established by the collective bargaining agreement through the unfair labor practice procedure rather than through the contractual arbitration procedure. Although District 2A could voluntarily agree upon such anomalous restrictions upon arbitration in exchange for negotiated benefits, their impasse and imposition is unlawful. See Hydrotherm Inc., 302 NLRB 990, 994-95 (1991) (restrictions upon a grievance and arbitration proceeding that provide a union with fewer rights than they would have had without a contract constitutes bad faith bargaining).

District 2A's agreement to the CPA's arbitration proposal prior to impasse does not permit the arbitration proposal to be taken to impasse and imposed after District 2A had withdrawn its agreement. See New Smyrna Beach Fire Fighters, Local 2271 v. City of New Smyrna, 23 FPER & 28135 (1997) (a union's previous voluntary agreement to include a repressive arbitration clause for the loser to pay the winner's attorney's fees in arbitration does not mean that such a provision may be lawfully imposed in future negotiations); Broward County Board of County Commissioners v. Port Everglades Fire Fighters, 23 FPER & 28199 (1997) (it is unlawful for a party to insist to impasse upon a permissive subject of bargaining even though the parties had agreed upon the permissive subject in a prior contract), citing In re City of Boynton Beach, 7 FPER & 12090 (1981); cf. Turnbeyy Associates v. Service State Aid, Inc., 651 So.2d 1173 (Fla. 1995) (the parties to an arbitration agreement may "voluntarily agree" to include waivers of rights in arbitration agreements).

Furthermore, the repugnant provisions of the CPA's arbitration proposal identified by the hearing officer are inconsistent with uniform practices both in the public and private sectors to encourage arbitration as the medium for dispute resolution rather than the intervention of an administrative authority. The Commission has adopted the private sector policy as announced by the National Labor Relations Board in Collyer Insulated Wire, 192 NLRB 837; 842 (1971) of deferring to the parties arbitration when the unfair labor practice is an underlying contractual violation that can be remedied by arbitration. E.g., Orange County Classroom Teachers Association v. Orange County School Board, 7 FPER & 12439 at 989 (1981). In discussing this policy in the context of post-arbitration deferral, the Commission has stated:

 

Underlying the legislative requirement that all collective bargaining agree­ments contain final and binding arbitration procedures is the fundamental policy of allowing and encouraging parties to provide their own solution to disputes which may be resolved informally by interpretation or application of the collective bargaining agreement without resort to state intervention. (citation omitted) Final and binding resolution of disputes by a neutral arbiter chosen by the parties should more readily produce a solution acceptable to all.

 

FOP. Lodge 20 v. City of Miami, 11 FPER 116128 at 385 (1985), aff=d, 511 So.2d 549 (Fla. 1987), rev'g 492 So.2d 1122 (Fla. 3^rd DCA 1986). Therefore, the imposition of a restrictive arbitration clause that may discourage arbitration of disputes and encourage the use of alternative forums for dispute resolutions, such as the Commission under its unfair labor practice jurisdiction, is inconsistent with the purpose of Section 447.401, Florida Statutes.

Inasmuch as the "long" version of the arbitration provision places restrictions upon the issues that may be arbitrated as well as the arbitrator's remedy, the Commission agrees with its hearing officer that negotiating this issue to impasse and then attempting to impose this provision through the impasse procedure is an unfair labor practice within the meaning of Section 447.501(1)(a) and (c), Florida Statutes. City of Hollywood v. PERC, 476 So.2d 1340 (Fla. 1^st DCA 1985), aff=g in relevant part 11 FPER & 16001 (1984) (legislative body cannot lawfully eliminate arbitration rights in impasse resolution proceedings). Accordingly, the CPA's exceptions six through twenty-one are denied.

District 2A's exceptions one through four pertain to the hearing officer's findings and conclusions as to the second two issues, which were found to be without merit. District 2A's exception five is a request for the Commission to revisit the issue of an award of attorney's fees and costs to District 2A should the Commission grant any of the exceptions.

District 2A's exception three pertains to the second issue of whether the CPA's refusal to agree to voluntary check-off for District 2A's political action fund constitutes an unfair labor practice. In its brief, District 2A states that it would be unconstitutional for the CPA to discriminate against employees in not allowing check-off for its political action fund when it allows such deductions for other beneficiaries such as the United Way. The U.S. Supreme Court held over twenty years ago that a public employer's refusal to allow dues check-off for a union was not a constitutional violation even though it withheld money for other organizations. See City of Charlotte v. Local 660, International Association of Firefighters, 426 U.S. 283 (1976). Accordingly, there is no constitutional right of dues check-off for a union.

There is a statutory right to dues check-off in the context of union dues and uniform assessments. ' 447.303, Fla. Stat. (1999). Inasmuch as the purpose for which check-off is sought here is neither union dues nor a uniform assessment, District 2A has no statutory right to check-off for a political action fund: See In re Manatee County School Board, 6 FPER & 11212 (1980) (payroll deductions for political activities of a union constitute neither a required deduction for a uniform assessment nor a prohibited special assessment deduction pursuant to the provisions of Section 447.303, and such deductions are neither required nor prohibited by that provision). Accordingly, the Commission is in agreement with the hearing officer's analysis and the argument of the CPA that the issue of deductions for a union political action committee is a permissive subject that is not required to be negotiated to impasse by a public employer. Thus, the CPA's refusal to incorporate this provision into a collective bargaining agreement is not an unfair labor practice and District 2A exception three is denied.

District 2A's exceptions two and four pertain to the third issue for resolution by the hearing officer: whether the CPA allowed its employees to solicit decertification while prohibiting solicitation of union activities on behalf of District 2A. Exception two pertains to the hearing officer's finding that no managerial employee was made aware of any specific solicitation activities by Diane Ernst during working time to decertify District 2A. Exception four pertains to the hearing officer's conclusion that there was no discrimination shown in prohibiting District 2A supporter Roger Vernotzy from soliciting for union support during work time. It is argued that if exception two is granted then exception four should also be granted.

The hearing officer found that during negotiations in late 1999 District 2A vice president Ernest Rumsby informed CPA deputy executive director William Bancroft and attorney Jesse Hogg that a decertification petition was being circulated during work time by Ernst and employee Bobby Buczkowske. The hearing officer also found that Bancroft responded by stating that he was unaware of this and that he desired more specific details. The hearing officer also found that Rumsby did not provide Bancroft with any additional information but that Bancroft informed management officials to tell supervisors that activities either for or against the union were not to occur during working time. The record supports all of these facts. (T 41, 43, 45, 59-63)

District 2A states in exception two that it provided evidence to Bancroft of the solicitation in the form of employee statements. District 2A provided these undated statements as a part of its case in the subsequent decertification case hearing on January 12, 2000. During that hearing, Rumsby admitted that he had no knowledge as to whether any of these documents had previously been given to the CPA. (Joint Exhibit 13, pages 158-60) District 2A also states in exception two that operations and maintenance director Dwight Fender never investigated rumors of Ernst's solicitations. Fender attended negotiations, recalled that the union had raised the issue of Ernst during negotiations, directed his subordinate to investigate rumors concerning union activities on work time, but did not pursue the rumors concerning Ernst because he was not given any specific information. (T 68, 70-72, 73)  Accordingly, other than evidence presented at the decertification hearing, sometime after District 2A's complaints, there is no competent substantial evidence that the CPA's managers were ever provided with specific informa­tion as to the solicitation of employees during work hours by either Buczkowske or Emst.^[3]  Accordingly, the Commission agrees with the dismissal of the third unfair labor practice allegation and District 2A's exceptions two and four are denied.

As District 2A has not prevailed on any of its allegations except for that determined to be a matter of initial impression for which the Commission does not award fees and costs, District 2A exception five is denied. E.g., Jacksonville Supervisors Association v. City of Jacksonville, 26 FPER & 31140 at 257 (2000) (in a case of first impression a respondent cannot be said to have knowledge that it was acting unlawfully and thus will not be assessed fees and costs).

Left for resolution is District 2A's exception one pertaining to the finding of the hearing officer that Bancroft did not state during negotiations that he did not like unions.  As this finding is supported by the record, exception one is denied. (T 53, 55-56, 68-69, 76-77)

With the exceptions outlined above, our review of the record reveals that the hearing officer's findings of fact are based upon competent substantial evidence received in proceedings which satisfy the essential requirements of law. Therefore, as amended by the discussion above, we adopt those findings. ' 120.57(1)(1), Fla. Stat. (1999). Furthermore, we are in agreement with the hearing officer's analysis of the dispositive legal issues, her conclusions of law, and her recommendations. Therefore, as amended by the discussion above, the hearing officer's order is incorporated herein and ADOPTED as the Commission's final order.

Having found that the CPA engaged in an unfair labor practice in violation of Section 447.501(1)(a) and (c), Florida Statutes, the Commission orders that it shall:

 

1.  Cease and desist from:

 

a.  Negotiating to impasse and imposing language in the collective bargaining agreement's grievance-arbitration procedure which imposes restrictions on the arbitrator's ability and discretion in resolving disputes by limiting his authority to fashion remedies, by limiting his ability to consider only one issue, and by requiring the losing party to pay the arbitrator's fees.

 

b.  In any like or related manner, refuse to bargain collectively or fail to bargain collectively in good faith over wages, hours and terms and conditions of employment with District 2A.

 

2.  Take the following affirmative action:

 

a.  Upon request by District 2A, renegotiate the collective bargaining agreement's grievance-arbitration procedure.

 

b.  Post immediately in conspicuous places where notices to employees represented by District 2A are customarily posted, the attached notice to employees stating that the CPA will take the action set forth above.^[4] The CPA shall ensure that these notices remain posted for sixty (60) consecutive days and that the notices are not defaced or altered and are not covered by other material. Copies of the notice shall be signed by the CPA's authorized representative prior to posting.

 

c.  Notify the Commission in writing within twenty (20) calendar days from the date of this order of compliance herewith.

 

This order may be appealed to the appropriate district court of appeal. A notice of appeal must be received by the Commission and the district court of appeal within thirty days from the date of this order. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. Further explanation of the right to appeal is provided in Sections 120.68, and 447.504, Florida Statutes, and the Florida Rules of Appellate Procedure.

 

It is so ordered.

POOLE, Chair, and JACKSON, Commissioner, concur.

 

I HEREBY CERTIFY that this document was filed and a copy served on each party on AUGUST 15, 2000.