STATE OF FLORIDA
PUBLIC EMPLOYEES RELATIONS COMMISSION

Case No. CA-97-055
FINAL ORDER
Order Number: 97U-283
Date Issued: November 6, 1997

CITRUS, CANNERY, FOOD PROCESSING AND ALLIED WORKERS, DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL #173, Charging Party,
V.
BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Respondent.

Stanley E. Marable, Sarasota, attorney for charging party.
William M. Rossi, Sarasota, attorney for respondent.

On May 5, 1997, the Citrus, Cannery, Food Processing and Allied Workers, Drivers, Warehousemen and Helpers, Local #173 (Local 173) filed an unfair labor practice charge against the Sarasota County Board of County Commissioners (County). Local 173 alleges that the County committed several unlawful acts during the negotiations and subsequent impasse resolution of the parties' initial collective bargaining agreement. On August 8, the hearing officer issued a recommended order in which he determined that the County violated Section 447.501(1) (a) and (c) Florida Statutes, when it attempted to impose through legislative action a waiver of the ability of Local 173 to file, process and arbitrate grievances concerning disciplinary action taken by the County against bargaining unit employees. The hearing officer recommended dismissal of the remaining charges. He also determined that Local 173 is entitled to a pro rata award of its attorney's fees and costs.

On August 28, Local 173 filed four exceptions to the recommended order. The County filed four exceptions, a supporting brief, and a brief in response to Local 173's exceptions. A transcript of the evidentiary hearing has been filed with the Commission.

Upon review of the record in this case, including the recommended order and the transcript, we conclude that the hearing officer's findings of fact, except as noted below, are supported by competent, substantial evidence and that the proceedings upon which they are based comply with the essential requirements of law. Accordingly, we adopt the hearing officer's findings of fact as modified by our resolution of the parties' exceptions.  120.57(l)(j), Fla. Stat. (Supp. 1996). We also agree with the hearing officer's conclusion that the County violated Section 447.501(1) (a) and (c), Florida Statutes, when it attempted to impose through legislative action a waiver of the ability of Local 173 to file, process and arbitrate grievances concerning disciplinary action taken by the County against bargaining unit employees.

The salient facts, as found by the hearing officer, show that Local 173 was certified by the Commission in February 1995 to represent the County's blue-collar employees. The parties commenced negotiations for the initial collective bargaining agreement in October 1995. The eleven negotiation sessions were "free form." For example, there were no express understandings concerning the effect of tentative agreements or other specific rules governing the parties' negotiations.

During negotiations, the parties tentatively agreed upon several articles. Local 173 declared impasse in August 1996. The Commission appointed a special master on October 9. On December 10, the County notified the special master and Local 173 of the issues it believed were at impasse.

The County also notified Local 173 that it had withdrawn several of its prior proposals relating to discipline because of a referendum which had affected local law. The articles withdrawn by the County were those containing provisions which it believed pertained to disciplinary action, and thus could be a segue to the grievance and arbitration procedure. The parties had reached tentative agreement on some of these proposals. The County stated that its withdrawn proposals had been drafted in light of a special act of the Legislature in which the County's disciplinary procedures were directly incorporated into the County charter. The County also stated that the November 1996 election, which eliminated the special act, caused the County to modify its proposals, including some which had been tentatively agreed upon before the election, in order to maintain the County's consistent position in negotiations that discipline would be the exclusive domain of the County. Throughout the negotiations the County negotiated with the premise that it desired to keep discipline out of the grievance and arbitration procedure in the collective bargaining agreement.

The special master's hearing was "free form" as a result of the modifications to the County's bargaining position and because Local 173 failed to provide a copy of the statement of issues to the County or the special master. Certain proposals, including Article I (recognition) and Article 4 (safety and health), were presented to the special master as impasse issues. The parties discussed their respective bargaining positions, negotiated and agreed on certain issues, and discussed new issues.

During the special master hearing, the County's representative indicated that the County wanted to preserve its ability to preclude discipline from being subject to an outside grievance procedure, but to have it subject to the County's internal procedure, as existed prior to repeal of the Special Act.

On January 28, 1997, the special master issued her recommended decision. She made recommendations on several issues including management rights, safety and health, no strike, grievance and arbitration, unfunded mandates, union security, and wages. Local 173 did not object to any of the special master's recommendations. The County rejected the special master's recommendations concerning the following impasse issues: management rights, no strike, grievance and arbitration, unfunded mandates, union security, and wages.

Both parties made presentations and recommendations to the County's legislative body. The legislative body voted to adopt the County's recommendations. On March 20, the County sent a copy of the proposed agreement, which it believed incorporated the impasse issues which had been resolved as well as all agreed-upon provisions, to Local 173 for ratification. Local 173 responded stating that its attorney would review the contract for accuracy. Thereafter, Local 173 filed the instant unfair labor practice charge.

The County's exceptions take issue with the hearing officer's facts, analysis and conclusion that it violated Section 447.501(1) (a) and (c), Florida Statutes, by seeking to impose, through legislative body action, a waiver of Local 173's ability to file grievances concerning disciplinary action taken against bargaining unit employees. The County's argument appears to be premised upon its belief that it may lawfully exclude the subject of discipline from the contractual grievance procedure. Commission case law and public policy do not support the County's argument.

Rather, the hearing officer correctly concluded that a public employer cannot impose a waiver of the right to have disciplinary grievances arbitrated. See In re AFSCME, 8 FPER  13278 (1982); See also City of Casselberry v. Orange County PBA, 482 So.2d 336 (Fla. 1986); CWA v. City of Gainesville, 22 FPER  27258 (1996) (a public employer may not legislatively impose a waiver of bargaining rights on either employees or their certified bargaining agent) . Therefore, the County's exceptions are denied.[[1. In reaching this conclusion we specifically reject the hearing officer's interpretation and application of the decisions in Rowe v. Pinellas Sports Authority, 461 So.2d 72, 77 (Fla. 1984); Duval Teachers United v. Duval County School Board, 3 FPER 96, 100 (1977) aff'd, 353 So.2d 1244 (1978), to the facts of this case.]]

In its first two exceptions, Local 173 contends that the hearing officer misconstrued its charge by failing to consider the portion of its charge which alleges that the County sought to impose language which "would waive the Union's right to bargain over mandatory subjects of collective bargaining, e.g., work schedules, promotions, demotions, transfers, assignments of work, etc." Local 173 asserts that the hearing officer limited his analysis to the issue of whether the County unlawfully excluded the above-referenced subjects from the grievance procedure.

We agree with the hearing officer's ultimate conclusion that the management rights clause incorporated in the agreement does not impose waivers of Local 173's right to engage in collective bargaining, albeit for different reasons. The hearing officer framed issue nine as whether "the legislative body resolved through impasse the inclusion of a management rights clause which imposed a waiver of the Charging Party's rights to bargain over work schedules, promotions, demotions, transfers, and assignments of work." (HORO page 9) However, in his findings of fact and analysis, he addressed the issue of whether the County sought to impose an overly broad management rights clause which waived Local 173's ability to grieve (rather than bargain over) non-disciplinary matters such as "work schedules, promotions, demotions, transfers, assignments of work, etc." He determined that the record evidence does not support Local 173's conclusion that the management rights clause improperly imposes waivers. This conclusion was based upon a finding that the parties agreed upon the language in the management rights clause. (HORO, page 25)

Record evidence shows that certain provisions of the management rights article were in dispute when Local 173 declared impasse. Although the parties were able to reach an agreement on several of the disputed provisions during the special master hearing, two provisions remained in dispute: subcontracting and reclassification of positions.

The special master recommended that the section of the management rights article concerning subcontracting contain "a further provision which allows for full discussion with the union on the likely impact before implementing the decision." She recommended the inclusion of a similar proviso with respect to the reclassification of positions. Local 173 did not object to the special master's recommendations. The record evidence further shows that the agreement the County submitted to Local 173 for ratification included the above-referenced recommendations of the special master. Thus, Local 173's contention that the County sought to impose waivers of its bargaining rights through the management rights article is not supported by the record evidence. Accordingly, exceptions one and two are denied.

In exception three, Local 173 takes issue with the hearing officer's recommendation to dismiss, as de minimus, its allegation concerning the County's unilateral implementation of a safety policy. The gravamen of the charge is that the County committed an unfair labor practice when it incorporated its entire safety policy into the agreement by reference rather than setting forth verbatim in the agreement the entire safety policy.

The hearing officer determined that the County went beyond the special master's recommendation that the express terms of the safety committee be placed in the agreement. This finding is not supported by the record evidence which shows that the special master did not specifically recommend the inclusion of a provision establishing a safety committee in the agreement. Rather, her recommended decision simply states "[I]f provision for a safety committee and safety policies are included in the contract, the employees may find the contract more readily available and understandable." Given the ambiguity of the special master's recommendation, the County's inclusion of the safety provision by reference in the agreement submitted to Local 173 for ratification was not an unfair labor practice. We recognize that our decision does not resolve the parties' dispute regarding the safety policy. However, the special master process is the appropriate forum for the parties to resolve impasse issues inadvertently overlooked by the special master. E.g., CWA v. City of Gainesville, 20 FPER  25226 (1994), aff'd, 662 So.2d 934 (Fla. 1st DCA 1995); Labors Public Employees Local 678 v. Cocoa Housing Authority, 18 FPER  23101 (D.G.C. Summary Dismissal 1992). Accordingly, this exception is denied.

In exception four, Local 173 alleges that the hearing officer erred in failing to consider the concessions made by the County when it submitted a letter to Local 173 on June 20, which sought to resolve a number of items encompassed in Local 173's charge. Local 173 contends that the case should be remanded to the hearing officer to consider the ramifications of the concessions made by the County. These proposed findings are unnecessary to the resolution of the issues in this case. Therefore, we decline to consider them. Forrester v. Career Service Commission, 361 So.2d 220 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1366 (Fla. 1979). Accordingly this exception is denied.

Finally, Local 173 requests an award of attorney's fees in excess of the pro rata amount recommended by the hearing officer. The County also excepts to the hearing officer's determination that it is not entitled to an award of attorney's fees and costs of litigation. These exceptions are denied for the reasons stated by the hearing officer.

1. The Commission has jurisdiction of this unfair labor practice charge.  447.503, Fla. Stat. (1995).

2. The County violated Section 447.501(1) (a) and (c), Florida Statutes, when it attempted to impose through legislative action a waiver of the ability of Local 173 to file, process and arbitrate grievances concerning disciplinary action taken by the County against bargaining unit employees.

3. A pro rata award of attorney's fees and costs is appropriate.  447.503(6), Fla. Stat. (1995).

Pursuant to Section 447.503(6)(a), Florida Statutes, the Commission ORDERS the County to:

1. Cease and desist from:

(a) Imposing a provision which excludes the subject of discipline from the collective bargaining agreement's grievance and arbitration procedure.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of any rights guaranteed them under Chapter 447, Part II, Florida Statutes.

(c) In any like or related manner, failing to bargain collectively in good faith over wages, hours, or other terms and conditions of employment.

2. Take the following affirmative action:

(a) Rescind the portion of the legislative body action which adopted the County's recommendation to exclude discipline from the grievance and arbitration procedures of the collective bargaining agreement.

(b) Pay to Local 173 its pro rata reasonable attorney's fees and costs pertaining to the foregoing legislative body action.

(c) Upon Local 173's request, engage in bargaining over the subject of discipline.

(d) Post immediately in conspicuous locations where notices to employees are customarily posted copies of the attached Notice to Employees.[[2. In the event the Commission's order is affirmed by the District Court of Appeal, the words in the notice "Posted by Order of the Public Relations Commission" shall be immediately followed by the words "affirmed by the District Court of Appeal."]] The County shall take reasonable steps to ensure that the copies remain posted for 60 days and are not altered, defaced or covered by other material.

(e) Notify the Commission within twenty calendar-days from the issuance of the Commission's final order of the steps which have been taken to comply 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 30 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 447.504, Florida Statutes, and 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Commission within 15 days from the date of this order. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15.005.

It is so ordered.
MAHON, JR., Chairman, GOODING AND GERTZ, Commissioners, concur.

I HEREBY CERTIFY that this document was filed and a copy served on each part on November 6, 1997, 1997.

BY: Darlene Alligood

Chief Deputy Clerk

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