A. Constitutional Basis - Article 1, Section 6 of the

Florida Constitution

"The right of employees by and through a labor organization, to bargain collectively shall not be denied or abridged."

B. Statutory Basis - Section 447.309(l) of the Florida Statute

Imposes upon the parties the duty to bargain in good faith with respect to "wages, hours, and terms and conditions of employment."

C. The extent to which a public employer must bargain with

the union as to a unilateral change depends on the

category of the subject of the change.

II. CATEGORIES OF BARGAINING

A. Mandatory Subjects of Bargaining

• Mandatory subjects of bargaining generally fall squarely into the ambient of "wages, hours, and terms and conditions of employment."
• Public employers have a duty to bargain about the decision to make the change and the effect of the change on the employees.
• The duty to bargain about the effect of the change on employees is called impact bargaining.
• Refusal to bargain these mandatory subjects is a per se violation of the PERA.

B. Permissive Subjects of Bargaining

• Subjects which do not fit into the ambient of "wages, hours, and terms and duties of employment" are permissive subjects of bargaining.
• Public employers have a duty to bargain about the effect of the change (impact bargaining), but not the decision to make the change.

C. Illegal Subjects of Bargaining

A relatively small number of topics have been found to be unlawful to bargain as the effect of their implementation would violate law or public policy. [Eg. A contract provision which required all employees, including non-union members to contribute a portion of their sick leave to a "union time pool" was unlawful because it interfered with a nonunion members right to refrain from participating in union activities. Delaney V. City of Hialeah v. AFSCME, Local 3032, 9 FPER 14,339 (1983), aff'd, 10 FPER 15,300(1984)

III. IMPACT BARGAINING

Thus, impact bargaining is the employer's obligation to

bargain over the effects of unilateral management decisions

regarding areas of permissive, bargaining.

IV. EXAMPLES OF MANDATORY SUBJECTS OF BARGAINING

A. Wages

• Step increments - Nassau Teachers Ass'n, FTP-NEA v.

School Bd. of Nassau County, 8 FPER 13,206 (1982)

• Holiday compensation - Teamsters Local 444 v. City of Winter Park, 5 FPER 10,059 (1979)
• Salary schedule - Pasco Classroom Teachers' Ass'n v. School Bd. of Pasco County, 3 FPER 9 (1976), aff'd, 353 So. 2d 108 (Fla. 1st DCA 1977)
• Coaching supplements - In re Petition for Declaratory Statement of the Levy Co. Education Ass'n and the School District of Levy County, 11 FPER 16,096 (1985)

B. Hours

• Overtime - Sarasota Professional Fire Fighters v. City of Sarasota, 13 FPER 18,033 (1986)
• Work schedule - IBPO, Local 621 v. City of Hollywood, 7 FPER 12,293 (1981)

C. Terms and conditions of employment

• Absenteeism policy - ATU, Local 1596 v. Orange-Seminole-Osceola Transportation Authority, 12 FPER 170134 (1986)
• Discipline and discharge - Duval Teachers United, FEA/U-AFT, AFL-CIO v Duval County School Board, 3 FPER 96 (1977)

3. Grievance procedure - In re Communication Workers of America, 4 FPER 4135 (1978)

• Health insurance - Pinellas County PBA v. City of Dunedin, 8 FPER 13,102 (1982)
• Holidays - Teamsters Local 444 V. City of Winter Haven, 5 FPER 10,089 (1979)
• Instructional periods, teacher workload -- Indian

River County Educ. Ass'n, Local 3617 v. School Board of Indian River County, 4 FPER 4262 (1978), aff'd 373 So.

2d 412 (Fla. 4th DCA 1979)

• Length of work year -- Palowitcb, v. Orange County School Board, 3 FPER 280 (1977), aff'd, 367 So. 2d 730 (Fla. 4th DCA. 1979)
• Retirement - City of Tallahassee v. PERC, 410 So. 2d 487 (Fla. 1981)
• School calendar - Bradford Education Association v. Bradford County School Board, 9 FPER 14,155 (1983)
• Teacher planning days -- Pasco Classroom Teacher's Ass'n v. School Board of Pasco County, 3 FPER 9 (1976), aff'd, 353 So, 2d 108 (Fla. lst DCA 1977)
• Transfer -- In re Levy County School Bd., 5 FPER 10,213 (1979)

V. EXAMPLES OF PERMISSIVE SUBJECTS OF BARGAINING

• Abolition and creation of bargaining unit positions -NAME v. City of Casselberry, 10 FPER 15,205 (1984)
• Assignment of employees - Manatee Education Assn v. Manatee County School Bd., 7 FPER 12,017 (1980)
• Class size - Hillsborough Classroom Teachers Ass'n v. School Bd. of Hillsborough County, 8 FPER 13,074 (1982) aff'd, 423 So. 2d 969 (Fla. lst DCA 1983)
• Instructional periods for students - Indian River County Educ. Ass'n, Local 3617, FEA/U-AFT v. School Bd. of Indian River County, 4 FPER 4262 (1978), aff'd 373 So. 2d 412 (Fla. 4th DCA. 1979)
• Minimum staffing levels - Hillsborough Classroom Teachers Ass'n v. School Board of Hillsborough County, 7 FPER 120411 (1981) aff1d 423 So. 2d 969(Fla. lst DCA 1983)
• Student day (starting and ending times - Duval Teachers United, FEA/United Local 3326 v School Board of Duval County, 6 FPER 11,271 (1980)
• Closing of work site - IAFF, Local 1403 v. Metropolitan Dade County, 11 FPER 16,285 (1985)
• Drug testing - City of Miami Fraternal Order of Police, Miami Lodge 20, 15 FLW 979 (Fla. 3d DCA April 17, 1990), rev'd, 12 FPER 17,029 (1985)

• Institution of time clock - Federation of Public Employees v. School District of Broward County, 14 FPER 19,159 (1988)

VI. NOTICE AND OPPORTUNITY TO BARGAIN

The employer has an obligation to provide notice to the union that it intends to make a unilateral change and then afford the union an opportunity to bargain over any impact.

VII. DEMAND FOR BARGAINING

The employer has no obligation to bargain about impact until the union has made a demand for bargaining.

VIII. EMPLOYER DEFENSES UNILATERAL CHANGES WITHOUT BARGAINING

A. Waiver

• A waiver by the union extinguishes the right to insist on negotiations.
• Kinds of waivers
• Contractual waivers
• Waiver by inaction

B. Exigent circumstances

C. Exhaustion of impasse procedures and legislative body action under 447.403(4)(e)