AGETTING TO IMPASSE/SPECIAL
MASTER@ FEN ANNUAL SPRING TRAINING
PROGRAM May 21-23, 1997 Concurrent Session Robert Barrett (1st session) and Marcus Johnston (2nd
session) Impasse procedure is controlled by Florida Statute,
Chapter 447.403, PERC rules and case law.
The procedure and timetable is as follows: 1. AIf, after a reasonable
period of negotiationY.@, one party declares that negotiations are at
an impasse on specific issues. When
impasse is declared, it is important to specifically identity which items are
in dispute and the positions of the parties on the items. 2. Parties declare in writing to each other and to PERC that
negotiations are at an impasse. Parties
MAY jointly mutually agree to secure the services of a mediator who must operate
in a confidential manner. If the
parties do not mutually agree to submit the dispute to a mediator, PERC will
appoint a special master. Selection may
be made through the FMCS. (PERC rule 38-19.002-003). If they wish to do so, the parties may proceed to special master
and submit to mediation at the same time. 3. If the parties agree in writing to waive the appointment of a
special master, the parties may proceed directly to the legislative body which
will conduct a hearing to resolve the disputed issues. 4. If no special master waiver is submitted to PERC, the commission
will provide the parties with a list of special masters unless the parties
otherwise mutually agree to an acceptable individual. [PERC rule 38D-19.005
(2)] 5. The parties have 20 calendar days to return the list to PERC with
each party's selections from the list.
If the parties cannot agree on the selection of a special master through
the striking procedure, the Chairman will appoint a special master of his/her
choice. [PERC rule 38D-19.005(3)(a)-(4)] 6. PERC will notify the parties which person has been selected as
special master. 7. Within 10 calendar days after the appointment of the special
master, each party provides the other party and the special master a written
list of the issues at impasse. [PERC rule 38D-19.006] 8. "Thereafter" the special master determines the time,
date and place of a public hearing to be held for the purpose of the parties
presenting their respective positions.
[PERC rules 38D-19.007 - 19.008] 9. Within 15 calendar days after the conclusion of the hearing, the
special master will submit his/her written "recommended decision" on
each issue in dispute to PERC and to the parties, return receipt
requested. [Chapter 447.403(3)] 10. Within 20 calendar days after the parties receive the special
master recommended order any items rejected by either party must be filed in
writing to PERC serving a copy on the other party. Such notice must include a statement of the cause for the
rejection. ****** NOTE -- DON=T LET THEM LEAVE WITHOUT
KNOWING THIS! ****** EXECUTIVE SESSIONS ARE
PERMITTED UP UNTIL THE REPORT IS REJECTED BY THE SUPERINTENDENT OR UNTIL THE
PARTIES MUTUALLY AGREE IN WRITING TO WAIVE THE SPECIAL MASTER PROCEDURE. AFTER THAT TIME, THE BOARD BECOMES A NEUTRAL
BODY FOR PURPOSES OF THE IMPASSE PROCESS.
IT IS PERMITTED FOR THE BOARD TO DISCUSS THE REPORT IN EXECUTIVE
SESSION, BUT ONCE THE REPORT IS REJECTED OR SPECIAL MASTER IS BY PASSED-NO MORE
EXECUTIVE SESSIONS. [PERC decision City of Ocala, 1979 affirmed DCA, 1981
referred to in City of Fort Lauderdale(CA93-027)] [City of Jacksonville, 1989,
15 FPER 420327(1989)]. ******* Within the 20 calendar days
following receipt of the special master report some other things must occur. Chapter 447.403(3) (4) and
case law provides the following: a. Parties must discuss the recommendations. b. Each party must identify which special master recommendations
it wishes to reject. c. All rejected recommendations must be in writing to PERC and
must specify the recommendation being rejected as well as the reason for the
rejection. Such reason does not have to
be based on substantial evidence but must be given. d. Special Master recommendations not rejected within the time
period will be deemed acceptable to both parties and will become part of the
tentatively agreed to items for the new Agreement upon ratification by the
parties. e. If either party rejects all or any part of the recommendations,
the Superintendent within 10 calendar days of rejection submits to the School
Board a copy of the special master recommendations along with the
Superintendent's recommendation for settling the rejected issues, with a copy
to the Union. The Union likewise
submits its settlement recommendations to the School Board and the Superintendent. 11. The School Board or a duly authorized committee of the Board shall
"forthwith" conduct a public hearing so that the parties can present
each side to the School Board . At this
hearing, the Union and the Superintendent are required to explain their
positions with respect to the rejected Special Master recommendations. 12. AThereafter@ the legislative body shall
take such action as it deems to be in the best interest of the public. Once the issues are resolved, they cannot be
re-visited except for a successor Agreement.
13. Following the resolution of the disputed issues by the
legislative body, the parties shall reduce to writing AN AGREEMENT which
includes those issues agreed to by the parties (all TA=s) and those disputed issues
resolved by the legislative body. The
Agreement shall be signed by the Superintendent and the union and submitted to
the parties for ratification. [Chapter
447.403(4)(e)] 14. If the Agreement is not ratified by all parties, the legislative
body action shall take effect as of the date of the legislative action.
[Chapter 447.403(4)(e). ******* QUESTION - Does this mean
that the converse is true, that is, if it is ratified, is the effective date of
imposed items, the date of final ratification?
Not necessarily as shown below. The 1994 PERC ruling in the City of
Gainesville (CA-93-088, 20 FPER 25226, 1994) case in which PERC stated A Effective date of
legislative body=s resolution depends on results of ratification
(vote), which must precede implementation of any changes in status quo. Should the union in bad faith delay
ratification vote, employer must seek remedy through unfair practice
procedures.@ This could pose an interesting problem when the imposed items
deal with provisions such as a change in the insurance rates or coverage and
the insurance bid expires prior to this Union delayed ratification vote. ******** 15. The Board may not impose financial and statutory items for longer
than the current FY(June 30). These
items then become the status quo as if they had been ratified and they can only
be changed through the normal negotiations process including, if necessary,
legislative imposition. [PERC decision-City
of New Port Richey (CA-83-093, July 20, 1984; 10 FPER 15191) 16. All parts of the newly negotiated Agreement that were tentatively
agreed to and/or were accepted parts of the special master recommendation, are
subject to the normal ratification process.
Failure to ratify the Agreement results in the Aloss@ of these items and these
provisions revert back to their former selves as part of the status quo and
must be re-negotiated in order to be changed. PERC has basically made it
clear that there are only two ways to change the status quo, 1) normal
ratification process subsequent to reaching tentative agreement and 2)
completion of the Impasse process as described. [[UNION STILL FILES CASES
TRYING TO EXPAND THIS TO MEAN THAT ALL ITEMS RESOLVED BY THE BOARD LAST
ONLY TO THE END OF THE FY {Still kind of a Agrey@ area!} HOWEVER, PERC HAS STUCK TO ITS POSITION THAT
ALL BOARD RESOLVED ITEMS, EXCEPT MONEY AND STATUTORY RIGHTS, ARE THE ANEW@ STATUS QUO.]] IMPASSE TIMELINES AND EVENTS FEN CONFERENCE MAY 22-24, 1997 EVENTS REQUIRED CALENDAR DAYS ALLOTTED IN THE LAW/RULE MAX DAYS ALLOWED IN
LAW/RULE MINIMUM NUMBER OF DAYS
LIKELY TO BE NEEDED BUT NOT IN LAW Impasse is declared None-AAfter reasonable period of
negotiations@ 0 0 Parties notify PERC in
writing of the impasse None mentioned in
law/rules 0 5 PERC provides list of SM None mentioned in
law/rules 0 10 Parties select SM and
return list to PERC Within 20 calendar days of
receipt of list 20 - PERC appoints Master None mentioned in
law/rules 0 7 SM conducts hearing None mentioned in
law/rules 0 20-30 SM submits findings to the
parties and PERC Within 15 calendar days
after the close of the hearing 15 - Parties discuss the report
and notify PERC and other party of rejected items and why Within 20 calendar days of
receipt of the SM report. 20 - Supt. provide Board with
copy of SM report. Supt and Union
provide Board with recommendations as to settling rejected items Within 10 calendar days of
items being officially rejected 10 Board conducts hearing on
the rejected items None mentioned in
law/rules. Law requires Aforthwith@. 0 10-15 Board takes action on
rejected items None mentioned in the
law/rules. Law says Athereafter@ and this is expected to
be done at the conclusion of the hearing on the rejected items. 0 0
Total minimum likely . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117