CITY OF CASSELBERRY
Decision of Florida PERC
National Association of Municipal Employees, Charging Party,
V.
City of Casselberry, Respondent,
Case No. CA-84-008, 84U-163
August 9, 1984

Before Shelley and Grizzard, Commissioners

Steven L. Sommers, Orlando, attorney for charging party.
Ned N. Julian, Jr., Sanford, attorney for respondent.

On March 13, 1984, a hearing officer assigned by the Commission conducted a public hearing in Casselberry on the charges. All parties received prior notice of the hearing and were given the opportunity to appear and fully participate in the proceedings. On May 11, 1984, the hearing officer issued his recommended order, which is incorporated herein. The hearing officer found that the City did not violate Sections 447.401 or 447.501(1)(a), (b) and (c) by implementing its decision to abolish and upgrade certain classifications. This decision resulted in the abolition of the secretary II and computer classifications, and the creation of three new classifications: system control manager, administrative assistant, and data preparation clerk backup computer operator. The hearing officer recommended that the unfair labor practice charge be dismissed. On May 31, 1984, the Association filed exceptions to the hearing officer's recommended order, along with a motion for extension of time within which to file a brief in support of the exceptions, which the Commission granted. The City did not file exceptions.

In exception 1, the Association objects to the hearing officer's finding of fact that the Association's September 27, 1983, letter did not request or demand bargaining over the impact of the City's managerial decisions. Our review of the record reveals that there is competent, substantial evidence to support this finding. Consequently, this exception is denied.

In exception 5, the Association objects to the hearing officer's legal conclusion that the Association's September 27, 1983, letter failed to request bargaining over the impact of the City's job creation and job abolition decisions. For the reasons discussed below, we conclude that the hearing officer's interpretation of this letter was a reasonable interpretation.

On September 21, 1983, the City informed the Association of its decision to implement the classification changes by October 1, 1983, and requested that any demands for bargaining be made by October 3, 1983. On September 27, 1983, the Association responded to Mayor Glascock:

[[Dear Mayor Glascock:

In response to the three letters I received from you
dated September 21, 1983, our position regarding each
is as follows:

Certainly, we have no objections to the upgrading of
bargaining unit members or the creation of a new
bargaining unit position, however, as you are aware,
we have filed a petition/1 with the Public Employees
Relations Commission concerning these three positions
and other positions.

We must object to any implementation concerning the
above referenced positions, especially since any attempt
to negotiate these positions is after the fact.

If you have any questions, please don't hesitate to
contact me at the Orlando office listed above.

Sincerely.

W. W. "Sam" Ingham, Jr.
National Representative ]]

It is clear from the language of the letter that the Association did not object to the upgrading of bargaining unit positions or the creation of new bargaining unit positions. Although the letter objects to implementation, the Association did not request impact bargaining. Thus the evidence shows that the City gave the Association notice and an opportunity to negotiate the impact of the implementation of its management decision and that despite this notice, the Association failed to make a bargaining demand in the September 27 letter. On October 6, 1983, the City responded to the Association's September 27 letter, stating that it interpreted that letter as a waiver of the Association's right to bargain. The Association failed to deny that its letter constituted a waiver at any time prior to the filing of this charge on January 23, 1984. Exception 5 is therefore denied.

In exceptions 8, 9, 10, 14 and 18, the Association essentially objects to the hearing officer's conclusions of law that the Association waived its right to object to the proposed changes because it never requested impact bargaining.

The Association contends that it made a proper demand for bargaining in its letter of November 18, 1983, wherein it stated:

[[...We would have no objections to the upgrading of these
two positions, but ONLY IF other bargaining unit positions
were negotiated for upgrading.]]

Before reaching the issue of whether the Association's November 18 letter constitutes a demand for impact bargaining, the timeliness of its submission to the City must be addressed. As stated above, the City informed the Association by letter dated September 21, 1983, that it intended to implement its managerial decisions effective October 1, 1983, and requested a bargaining demand no later than October 3, 1983. Despite notice of the City's intent, the Association's November 18 letter was submitted at least 45 days after implementation. Thus, the Association's letter of November 18, even if a proper demand for bargaining, could not have obligated the City to bargain over the impact of its decision prior to implementation.

Although the point is not raised in any exception, the Association argues in its brief that it was prevented from objecting to the upgrading of classifications so as to avoid the appearance to unit members that their union was attempting to thwart pay raises. It also argues that its November 18 letter was intended as a demand for negotiations over the criteria used in upgrading the specific positions involved as well as all other bargaining unit positions. Notwithstanding the intention of the Association, its letter of November 18 fails to state a demand for impact bargaining. For example, the Association never requested bargaining over the promotion procedures or criteria, the timing of the implementation of either the creation or abolition decision, the establishment of separation rights for employees whose jobs were to be abolished, or any other "impact" relating to the employer's managerial decisions. As the Commission stated in Leon County v. City of Tallahassee, 8 FPER ¶13400 (1982) aff'd, 445 So.2d 604 (Fla. 1st DCA 1984):

[[Without question, an employee organization can
effectively waive its collective bargaining rights
through inaction after it is placed on notice of a
proposed change. ...Most often inaction is demonstrated
by a failure to make an effective demand to negotiate....
Waiver by inaction is an affirmative defense which must
be established by a preponderance of the evidence by the
employer. However, this defense is not established merely
by proof that the magic words "we request to bargain over
the change" were not used. Rather, for inaction to ripen
into a "clear and unmistakable" waiver, consideration of all
the circumstances must reveal that the Union's conduct is
such that the only reasonable inference is that it has
abandoned its rights to negotiate over the noticed change.]]

In the instant case we have found that the language of the September 27 and November 18 letters did not make an effective request for impact bargaining. See Miami Association of Fire Fighters, Local 587, IAFF v. City of Miami, 10 FPER ¶15018 (1983). However, we note that if a valid demand to bargain over a subject not covered by a contract is made even after implementation of the change, the City's obligation to bargain over the impact of the change continues in the absence of waiver. Palowitch v. Orange County School Board, 3 FPER ¶280 (1977), aff'd. 367 So.2d 730 (Fla. 4th DCA 1979). Exceptions 8, 9, 10, 14 and 18 are denied.

In exception 6, the Association objects to the hearing officer's legal conclusion that its September 27 letter objects to implementation of the City's decision and therefore can only be interpreted to object to a decision solely within the City's prerogative. Our review of the record reveals that the Association never made a proper bargaining request and therefore waived its right to negotiate the impact of the City's decision to abolish certain classifications and upgrade other classifications within the bargaining unit. Accordingly, we need not resolve the issue of whether the setting of initial pay grades for upgraded classifications is within the City's prerogative. The hearing officer's statements in this regard are dicta which we neither accept nor reject. Exception 6 is denied.

In exceptions 2,3, 4, 11, 15 and 16, then the Association objects to the hearing officer's legal conclusion that the creation and filling of the job classifications of system control manager and administrative assistant and data preparation clerk backup computer operator, and the abolition of the job classifications of secretary II and computer operator was within the City's prerogative and therefore not in violation of Sections 447.501 and 447.501(l)(a), (b) or (c), Florida Statutes (1983).

As the hearing officer correctly stated, the abolition and creation of job classifications falls within the scope of management rights, 447.209, Fla. Stat. (1983). Dade County PBA v. Metropolitan Dade County. 7 FPER ¶12385 (1981); see Teamsters, Local 444 v. City of Winter Haven, 5 FPER ¶10194 (1979). The employer has the obligation to provide notice and an opportunity to negotiate the impact of its decisions upon bargaining unit employees, wages, hours, or terms and conditions of employment./2 Hillsborough County CTA, Inc. v. School Board of Hillsborough County, 7 FPER ¶12411 (1981), and 8 FPER ¶13074 (1982) (order on reconsideration), aff'd, 423 So.2d 969 (Fla. 1st DCA 1983). We will not assume that these decisions could have no impact on bargaining unit members. However, record evidence shows that the employer met its duty by providing notice and an opportunity to negotiate the impact of the City's decision and that although the Association objected to implementation, it failed to follow through at any time with an effective demand for bargaining. Therefore, we find no violation of Section 447.401/3 or Section 447.501(1)(a), (b) or (c), Florida Statutes (1983). Exceptions 2, 3, 4, 11, 15 and 16 are denied.

In exceptions 13 and 17, the Association objects to the hearing officer's conclusion of law and recommendation that the Association failed to carry its burden of showing that the City has violated any provision of Chapter 447, Part II, Florida Statutes (1983). Inasmuch as we have found no violation, this exception is denied.

Based upon our examination of the entire record, we conclude that the hearing officer's findings of fact are supported by competent substantial evidence and that the proceedings upon which the findings are based comply with the essential requirements of law. Accordingly, the Commission adopts as its own the hearing officer's findings of fact. Additionally, the Commission agrees with the hearing officer's analysis and recommended conclusions of law and adopts them herewith. Therefore, the Association's exceptions 7 and 12 (here the Association objects to the hearing officer's conclusion that no refusal to bargain or direct dealing occurred) are dismissed. We also conclude that the hearing officer correctly applied the relevant legal standard in analyzing the factual record. Dade County PBA v. Metropolitan Dade County, supra; Manatee Education Association v. Manatee County School Board, 7 FPER ¶12017 (1980); Hillsborough County CTA, Inc. v. School Board of Hillsborough County, supra; Indian River County Education Association v. School Board of Indian River County 4 FPER ¶4262 (1978), aff'd, 373 So.2d 412 (Fla. 4th DCA 1979); Palowitch v. Orange County School Board, 3 FPER ¶280 (1977), aff'd, 367 So.2d 730 (Fla. 4th DCA 1979).

Accordingly, the hearing officer's recommendation is hereby adopted and the unfair labor practice charge filed by the Association in this case is DISMISSED. No exception was filed to the recommendation that attorney's fees and costs not be awarded. We agree with the recommendation and conclude that attorney's fees and costs are not appropriate in this case. See 447.503(6)(c), Fla. Stat. (1983).

It is so ordered.

________________________
1. The Association filed a miscellaneous petition seeking unit clarification of a comprehensive unit of employees of the City on September 22,1983. The City contended that the Administrative Assistant to the Director of Utilities and Administrative Assistant in the Police Department were managerial or confidential employees. At the hearing held on November 15, 1983, however, the City withdrew its managerial, confidential request and agreed that both classifications should be included within the unit.

2. At page 9 of the recommended order, the hearing officer states, "A public employer may not, however, implement a decision concerning a non-mandatory subject prior to initiating negotiations, if the decision has a direct (meaning caused by and foreseeably resulting from) and substantial impact on wages, hours, or terms and conditions of employment and a collective bargaining agent has requested bargaining over such impact." The Association has not excepted to this statement and we have not considered it in resolving the exceptions. Accordingly, we reject it as unnecessary dicta.

3. Section 447.401, Florida Statutes (1983), is not applicable to a refusal to bargain charge, because this section is concerned solely with the requirement that all collective bargaining agreements contain a grievance-arbitration procedure.