The School Board provides health insurance coverage to all of its eligible employees through competitively bid comprehensive group insurance contracts. To obtain the best group health insurance coverage at the lowest cost, the same competi­tively bid insurance contracts cover all School Board employees. The Committee is a part of the competitive bid process.

The Committee is composed of bargaining agents from the School Board's various certified bargaining units and School Board representatives. After participating in a multi­step insurance carrier selection process, the Committee makes its recommendation to the Superintendent, who advances proposals to the School Board for approval.

Gentile was present at the July 20, 1998, meeting of the Committee at which the issue of including in the Request for Proposal (RFP) a provision for employees to opt-out of the group health insurance plan was raised and discussed. Representatives of the bargaining agents raised collective bargaining issues and moved to remove the provision from the RFP. On June 15, 1999, the School Board approved the award of RFP 99-100E to Foundation Health Plan (FH) and HIP Health Plan of Florida, Inc. (HIP), with an effective date of July 1, 1999. These carriers' group health insurance policies included opt-out provisions.

The terms and conditions of the health insurance contracts, including the opt-out provisions, were incorporated by reference into the Addendum 1999-2000 and 2000­-2001 to Collective Bargaining Agreement. Gentile was aware of the opt-out provisions in the health insurance contracts before the contract addendum was presented to the membership for a ratification vote. Gentile did not suggest that the membership should vote against ratification of the addendum because of the opt-out provisions. The bargaining unit members ratified the contract addendum on October 15, 1999.

On several occasions after October 15, Gentile requested that the School Board impact bargain With the BTU about implementation of the health insurance opt-out provision. The School Board ultimately refused to impact bargain.

The parties' collective bargaining agreement, effective from August 16, 1998, to August 15, 2001, provides for second-year reopener negotiations. Pursuant to reopener negotiations, an Addendum was negotiated for two years (1999-2000 and 2000-2001).

Hallandale Adult and Community School Schedule

The Hallandale Adult Community Center (Center) is a combined full-time alterna­tive high school and adult education center that services the southern portion of the Broward County Public School System. The Center operates on a block-scheduling system whereby the school day consists of a series of ninety-minute class periods, instead of the traditional one-hour class periods. Article Five of the parties' collective bargaining agreement, Conditions of Employment, provides the following regarding the length of a teacher's workday:

E.  Length of Workday:

The employees' workday shall be seven and one-half (72) consecutive hours, including the lunch period. Those teachers who teach 360 minutes shall have a workday of no longer than eight and one-half (82) hours.

Since at least the 1987-1988 school year, teachers at the Center have traditionally worked four periods instructing students, plus one period for planning, equaling an eight and one-half hour workday. The Center's management staff has always based its decision for extended day (eight and one-half hour) scheduling on the concurrent existence of three factors. Those factors are whether there exists: a sufficient student demand for the class; available budgetary funding to support the additional class; and a teacher interested in teaching the additional class.

The extended day schedule was not mandatory and a number of the Center's teachers have chosen not to work the eight and one-half hour workday. However, prior to the 1999/2000 school year, approximately ninety-five percent of the Center's class­room teachers were working an extended day schedule. In exchange for working an additional hour, teachers were paid a supplement pursuant to Article 19 of the 1999 Addendum to the collective bargaining agreement.

In August 1999, prior to the first day of the 1999/2000 school year, Linda Lopez, the Center's Principal, conducted a staff meeting at which she explained newly enacted legislative funding changes, and outlined the potential financial impact on the Center. Lopez did not tell the teachers that their extended teaching days were going to be changed because any change could not be determined at that time.

On November 22, 1999, Lopez received a report from School Board Area Business Analyst Joe Laverde advising her that the Center was facing a financial deficit of $691,476.00 in its projected budget. The report also informed Lopez that she could use funds she received on November 17, 1999, to reduce her deficit to $452,584.00. On November 23, 1999, Lopez held a faculty meeting.

At this meeting, Lopez advised the faculty of the financial deficit that the Center faced and the need to take immediate steps to correct the problem. Lopez told the faculty that it might become necessary to reduce or eliminate the extra hour, reduce the hours of summer school, and not fill vacant positions. Any proposal to cut the Center's spending had to be approved by the Area Business Analyst, the Area Director, the Area Superintendent, and the Superintendent of Schools before January 31, 2000, the first day of the Spring school semester.

Lopez was directed by the area office to develop a plan to solve the funding deficit without laying off any of the Center's teachers and without sacrificing students' needs. Under Plan L, the proposed solution to the funding deficit, Lopez allowed a number of unfilled positions to remain vacant, reduced the summer school program to a four-hour instructional day, reduced the number of hours worked by part-time teachers, combined certain classes with some classes having less than three students per subject, and returned all teachers to the contractual seven and one-half hour workday. She also reduced the number of security guards at the Center.

About the middle of January 2000, Lopez held another faculty meeting. She advised the teachers that the Center was now facing a financial deficit of approximately one million dollars for the 1999-2000 school year. Lopez also outlined the components of Plan L, including the elimination of the eight and one-half hour extended workday for teachers.

Plan L received final approval in the second or third week of January 2000. One of the four classes taught by the contract teachers was dropped and that time period became their planning period. The end of the workday was changed from 3:45 p.m. to 2:45 p.m. This change reduced the teacher's income.

Following the January meeting with Lopez, the BTU was informed through its members about the impending change in the hours of the contract teachers. BTU representatives, including Gentile, corresponded with School Board representatives requesting impact bargaining concerning these changes and asking that the changes not be implemented until the parties reached an agreement. The School Board ultimately denied the request. The reduction in hours and wages was implemented on Monday, January 31, 2000, the first day of the second semester.

On February 3, 2000, BTU filed a Level Two grievance challenging the District's decision to cancel the extended day schedule at the Center. During the grievance process, a BTU representative met with a School Board representative on at least two occasions (March 1 and May 8, 2000) to discuss the change in the teachers' schedules. On May 30, 2000, the BTU filed its unfair labor practice charge with the Commission. By letter dated June 22, 2000, Jones denied the BTU's grievance.

Exceptions

In its first exception, the BTU argues that the hearing officer at page 29 of the recommended order erroneously concluded that:

 

[T]he BTU, other unions, and the School Board have agreed to use the Committee as a means of determining what benefits the School Board employees will receive through the health care insurance contracts without the School Board being required to conduct individual negotiations with each bargaining agent .... Thus, the BTU either bargained or had the opportunity to bargain over the complete issue of the opt-out provisions through the Committee process before the ratification of the agreement. Therefore, the School Board had no obligation to further bargain with the BTU over the opt-out provision or its impact.

 

In finding 10, the hearing officer included the Committee's mission statement as follows:

To invite representation from the unions and associations which represent employees to work together with The School Board of Broward County, Florida; in a collaborative manner to formulate recommendations on employee benefits.

 

The parties recognize that group insurance benefits and other employee benefits are mandatory subjects of collective bargaining under Florida law.

 

The parties have agreed that after the Board has entered into a contract(s) with one or more vendors to provide group health insur­ance to bargaining unit members, during the fixed period of said contract(s) when premiums and benefit levels are established and guaranteed, the parties shall not modify established benefit levels or negotiate alternative benefit levels. However, if said contract(s) has options to renew the contract for one or more years beyond the established/guaranteed period, either party may demand negotia­tions through the Superintendent's Insurance Committee to amend benefit levels for the specific purpose of cost containment (e.g., co­payments, deductibles, etc.).

 

This process currently in place allows employees to enjoy the economies of scale that can be enjoyed when all unions and associations are part of the process.

 

In finding 12, the hearing officer states that:

 

The bargaining agents, School Board members, and school system staff make advisory recommendations to the Superintendent, who can advance proposals to the School Board for approval. The bargaining agents participate in the process in good faith to try to serve the needs of their members. However, the bargaining agents have made it clear that they believe their participation is not a waiver of their collective bargaining rights under Chapter 447.

 

These findings reveal that the Committee was not intended as a substitute for collective bargaining negotiations between the School Board and each of the bargaining units. Thus, we reject the hearing officer's conclusion that the BTU's participation in the Committee process constituted negotiations with the School Board for purposes of collective bargaining. To this extent, the BTU's exception one is granted. However, the granting of this exception does not materially affect our resolution of this case for the reasons next discussed in addressing the BTU's related exceptions four and five.

In exceptions four and five, the BTU objects to finding of fact 21 and the analysis on page 29, wherein the hearing officer found that: Gentile knew the opt-out provision was in the health insurance contracts before the contract addendum was ratified; Gentile did not suggest that the membership vote against ratifying the Addendum to the collective bargaining agreement notwithstanding the inclusion of the opt-out provision; the BTU's October 15, 1999, ratification of the addendum agreement incorporated the health insurance contracts, including the opt-out provision, into the collective bargaining agreement; and the BTU either agreed to, or waived its right to bargain over, the health insurance opt-out provision.

In reviewing the BTU's exceptions, we perceive some confusion regarding a public employer's duty to negotiate mandatory subjects of bargaining versus its duty to bargain over the impact of the implementation of a managerial prerogative. In Duval Teachers United, Local 3316 v. School Board of Duval County, Florida, 6 FPER & 11271 (1980), the Commission explained the public employer's duty to bargain the subject of the decision or its impact, upon demand by the certified bargaining agent:

 

In order to determine an employer's duty to bargain regarding a particular policy decision it desires to make, the subject matter of the decision must be categorized in one of two ways. The subject matter may itself be a wage, hour, term or condition of employment; alternatively, the subject matter may be a matter within the mana­gerial prerogative to set standards of service, although its imple­mentation will cause a change in wages, hours, terms or conditions of employment. If the subject matter of the decision is a term or condition of employment, it is a required subject of bargaining and the public employer must notify the certified bargaining representa­tive of its proposed decision and afford the certified representative an opportunity to negotiate before the employer takes any action to adopt or implement the change. If the subject matter is within the managerial prerogative to set standards of service, the employer may adopt the change in policy but may not implement its decision until it has afforded the certified representative notice and an opportunity to bargain regarding the impact which the implementa­tion will have on terms and conditions of employment. ld. at 402-403.

 

In the instant case, the group health insurance issue affected terms and conditions of employment and, therefore, was a mandatory subject of bargaining. ' 447.309(1), Fla.

Stat. (2000); Leon County PBA, Inc- v. City of Tallahassee, 8 FPER & 13400 (1982), aff=d,

445 So.2d 604 (Fla. 1^st  DCA 1984); Pinellas County PBA, Inc. v. City of Dunedin, 8 FPER & 13102 (1982). This statement of the law is consistent with the Committee's mission

statement in which the parties recognized "that group insurance benefits and other

employee benefits are mandatory subjects of bargaining under Florida law."

(Exhibit CP 8)^[2]  This mission statement was in effect at least two years prior to

September 11, 2000: (T Vol. I at 99)

A review of the entire record reveals that BTU President Gentile knew that the School Board intended to include an opt-out provision in the group health insurance contracts as of the July 20, 1998, Committee meeting at which he was present. (T Vol. I at 24, 37, 64-66; Composite Exhibit R 1) At that meeting, certain representatives of the bargaining agents raised collective bargaining issues and sought to remove the opt-out provision from the RFP. (T Vol. I at 66-68; Composite Exhibit R 1) Gentile was present when a majority of the Committee voted against removing the opt-out provision from the RFP. (T Vol. I at 52, 61, 76-77) Gentile knew that the opt-out provision would be in the RFP for bids. (T Vol. I at 53, 82)

The BTU and the School Board participated in reopener negotiations between July 20, 1998, and October 15, 1999. (T Vol. I at 73-74) The group health insurance issue was included in these negotiations, although neither party specifically raised the opt-out provision for discussion. (T Vol. I at 73-74) The School Board approved the award to FH and HIP on June 15, 1999, with an effective date of July 1, 1999. (Exhibit R 1)

Article Twenty-Two of the addendum specifically refers to the FH and HIP as the group health insurance plans, which Gentile knew contained the opt-out provisions. (Exhibit CP 1) Gentile knew prior to the BTU's October 15, 1999, ratification vote on the addendum that the School Board had adopted the insurance contracts which contained the opt-out provisions. (T Vol. I at 83) BTU unit members could have voted against ratifying the collective bargaining agreement if they were dissatisfied with the group health insurance coverage. (T Vol. I at 112-113) Gentile did not recommend that the BTU's membership vote against ratifying the addendum notwithstanding the inclusion of the group health insurance opt-out provision because he thought he did not have to ask for bargaining on this issue until the provision was implemented: (T Vol. I at 89-90) Gentile knew when he signed the parties' collective bargaining agreement that the insurance contracts were incorporated by reference. (T Vol. I at 61)

The BTU, through Gentile, knew or should have known that the opt-out provision was included in the group health insurance proposals. The BTU and the School Board negotiated the group health insurance issue during their reopener negotiations and, therefore, the BTU had the opportunity to raise the issue of the opt-out provision if it had desired to do so. Gentile did not raise the issue in the mistaken belief that he could wait and later raise the issue by requesting impact bargaining. The hearing officer's finding and analysis are supported by competent evidence and, therefore, BTU's exceptions four and five are denied.

In the BTU's exception two and the School Board's exception three, the parties object to the hearing officer's finding of fact 26 which states that, "The School Board pays the premium to the insurance carrier even if the employees opt-out of insurance coverage. (Exhibit R 1, pg. 75)" A review of Respondent's Exhibit 1 and Charging Party's Exhibit 5 reveals that finding 26 contains a scrivener's error. Accordingly, these exceptions are granted. Finding 26 is modified by deleting the word "pays" and substi­tuting the following underlined language: "The School Board does not pay a premium to the insurance carrier for those employees who opt-out of insurance coverage." This change does not materially change our resolution of this case.

In its third exception, the BTU objects to the hearing officer's findings of fact 27 and 28 asserting that they are based on hearsay evidence and that the quotes are irrelevant and immaterial. Our review reveals that these findings are included to place the School Board's position in context, rather than for the purpose of the truth of the matters asserted therein. Thus, they are not hearsay. See ' 90.801(1), Fla. Stat. (2000). Moreover, our review of factual findings consists of determining whether they are supported by competent substantial evidence or that the proceedings on which the findings are based did not comply with the essential requirements of law. See ' 120.57(1)(1), Fla. Stat. (2000). Thus, objections as to relevancy or materiality are not a proper basis for an exception to a factual finding. Accordingly, this exception is denied.

Before addressing the BTU's last exception, we will first address the School Board's exception two. In exception two, the School Board contends that the hearing officer erred in determining that the portion of the charge relating to the elimination of the extended day schedule was not barred by the election of remedies set forth in Section 447.401, Florida Statutes, because that provision only applies to State career service employees who have been disciplined. This section states, in pertinent part, as follows:

 

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 and binding disposition by an impartial neutral, mutually selected by the parties .... All public employees shall have the right to a fair and equitable grievance procedure administered without regard to membership or nonmembership in any organization, except that certified employee organizations shall not be required to process grievances for employees who are not members of the organiza­tion. A career service employee shall have the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is s precluded from availing himself or herself to more than one of these procedures.  (emphasis added).

 

The proposition that Section 447.401, Florida Statutes, only applies to State career service employees has been definitively rejected in Hallandale Professional Firefighters, Local 2238 v. City-of Hallandale, Florida, 26 Fla. L. Weekly D243 (Fla. 4t" DCA Jan. 17, 2001). See also Metropolitan Dade County v. Dade County Association of Firefighters, Local 1403, 575 So.2d 289 (Fla. 3rd DCA 1991); McClintock v. State University System of Florida, 25 FPER & 30200 (G.C. Summary Dismissal 1999).  Thus, this exception is granted to the extent that Section 447.401, Florida Statutes, is applicable to both State and other public employer civil service personnel. However, we do not consider this to be the end of the inquiry because the City of Hallandale, Metropolitan Dade Country, and McClintock cases, cited by the School Board to support its argument that an election of remedies bar exists here, are distinguishable from the

instant case.

In Hallandale Professional Firefighters, Local 2238 v. City of Hallandale, Florida, 26 Fla. L. Weekly D243 (Fla. 4t" DCA Jan. 17, 2001), a union filed a grievance pursuant to the parties' collective bargaining agreement challenging disciplinary action taken by the city against three firefighters. The union also filed an unfair labor practice charge with the Commission alleging that the city had improperly disciplined the three firefighters because of their union-related activity. The Commission ultimately adopted the recom­mended order in which the hearing officer found no unfair labor practice and concluded that the city had cause to discipline the firefighters as a result of the manner in which they responded to a  911 call.

After the final ruling by the Commission, the union pursued grievance arbitration which it had previously demanded. A trial court subsequently granted the city's motion for summary judgment, holding that, by electing the remedy of the Commission proceeding, the union was barred under Section 447.401, Florida Statutes, from pursuing arbitration on the same charges. The trial court's ruling was sustained by the district court of appeal.

Unlike the instant case, the facts in City of Hallandale reveal that the issue ulti­mately resolved by the Commission, whether the city had cause to discipline the firefighters, was the identical issue raised in the grievance. Thus, an election of remedies bar was properly invoked because the grievance procedure would have been duplicative of the unfair labor practice proceeding.

In Metropolitan Dade County v. Dade County Association of Firefighters- Local 1403, 575 So.2d 289 (Fla. 3^rd DCA 1991), a firefighter was discharged by the county fire department for violating the department's policy prohibiting the use of illegal drugs. The employee unsuccessfully sought relief from discharge through a civil service appeal. An arbitrator then heard the discharged employee's grievance based on an alleged contrac­tual violation of the county's drug testing procedure. The arbitrator ruled that the county had violated the contract, and as a remedy, ordered the county to reinstate the employee as a firefighter.

The county petitioned the trial court to vacate the arbitrator's ruling. On a cross­-motion for summary judgment, the trial court entered a final summary judgment in favor of the employee. The county appealed to the district court arguing an election of remedies bar existed under Section 447.401, Florida Statutes. The district court determined, as a matter of law, that the employee's appeal of his discharge through the civil service appeal procedure foreclosed him from seeking relief under the grievance procedure.

The district court's opinion in Metropolitan Dade County is silent regarding whether

the employee could have raised an alleged violation of drug testing procedures as a

defense in his civil service appeal. Apparently, the district court was satisfied that the

civil service appeal process afforded the employee with an opportunity to dispute all

matters relating to his discharge. See also Bass v. Department of Transportation, 516

So.2d 972 (1988) (Commission's dismissal of an appeal of a disciplinary discharge was

affirmed because the employee had previously grieved the same issue); McClintock -vL

State University System of Florida, 25 FPER & 30200 (G.C. Summary Dismissal 1999)

(General Counsel dismissed an unfair labor practice charge alleging a retaliatory

suspension because the employee had previously grieved the same personnel action).

The issues in the instant case do not involve disciplinary action. Moreover, the issue grieved by the BTU: that the School Board had violated the collective bargaining agreement by changing the school schedule without initiating a waiver process, is not the same as the issue raised before the Commission: the BTU's refusal to impact bargain. The issue of impact bargaining is within the Commission's exclusive jurisdiction and, therefore, is of a type that cannot be resolved in either a civil service appeal or a grievance procedure. See EERC v District School Board of De Soto County, 374 So.2d 1005 (Fla. 2^nd DCA 1979). Based upon the foregoing, we agree with the hearing officer that the election of remedies bar is inapplicable in this case. Thus, the remainder of the School Board's second exception is denied. We now address the BTU's last exception.

In exception six, the BTU objects to factual finding 40 and the hearing officer's discussion on pages 30-31 of the recommended order, wherein the hearing officer found that the Center's teachers only had a reasonable expectation of working a seven and one-half hour workday. The BTU argues that "[w]hile their extended workday was not in the contract, they had a reasonable expectation that they would work that same 8 and a half hour workday in the 1999-2000 school year, having done so for over a decade." The BTU bases its argument on a status quo established by a past practice, rather than on existing contractual language.

However, we have previously determined that:

 

[w]here terms or conditions of employment are embodied in contractual provisions, the status quo regarding those terms and conditions during the terms of the contract or following its expiration is to be determined by reference to the precise working of the rele­vant contractual provisions. When clarification is necessary, evidence of contract negotiations and the history of collective bargaining between the parties may be considered. See Pinellas Cry PBA v. City of St. Petersburg, 6 FPER & 11277 at 416 (1980). Thus, the "reasonable expectation of employees in the continuance of contractually defined terms and conditions of employment," as this concept has been expressed in the Nassau County line of decisions, has always been determined by reference to objective factors, primarily the precise wording of the contract. It has neither been intended nor applied in the past so as to require evidence from employees or negotiating parties concerning their subjective expectation.

 

See  Royal Palm Beach Professional Fire Fighters Associations, IAFF, Local 2886 v. Village of Royal Palm Beach, 14 FPER & 19304 at 672-673 (1988) and cases cited therein; Miami Association of Fire Fighters, Local 587 v. City of Miami, 10 FPER & 15018 (1983) (absent ambiguous contract language, there is no occasion to resort to extra­contractual evidence).

In the instant case, Article 5(E) of the collective bargaining agreement is unambi­guous, that is, "the employees' workday shall be seven and one-half (72) consecutive hours, including the lunch period. Those teachers who teach 360 minutes shall have a workday of no longer than eight and one-half (82) hours." This language reveals that the Center's teachers only had an expectation of working seven and one-half hours. Even though the contract permitted teachers to work an extended schedule of up to eight and one-half hours, it did not guarantee it. Thus, we agree with the hearing officer that the School Board had no obligation to bargain over the impact of the teachers' reduction in work hours or the associated reduction in pay because its actions complied with the parties' contractual language. Accordingly, this exception is denied.

In exception 1, the Respondent argues that it should have been awarded attorney's fees and costs. It is within the Commission's discretion to award to the prevailing party all or part of the costs of litigation, reasonable attorney's fees, and expert fees whenever it determines that such an award is appropriate. ' 447.503(6)(c), Fla. Stat. (2000).

An award will be made to a prevailing respondent only if the record affirmatively establishes that the charge was frivolous, unreasonable, or groundless when filed or that the charging party continued the litigation after it became clear that the charge was without merit. See National Union of Hospital and Health Care Employees v. Southeast Volusia Hospital District, 8 FPER & 13419 (1982). Upon our review of the entire record, including the transcript and exceptions, we agree with the hearing officer that the BTU's charge was not frivolous, unreasonable, or groundless when filed nor did it become so during the litigation on the merits. Accordingly, we decline to award attorney's fees and costs to the School Board and, therefore, this exception is denied.

Upon review of the record, we conclude that the hearing officer's factual findings, as modified, are based upon competent substantial evidence received in proceedings which satisfy the essential requirements of law. Therefore, we adopt the hearing officer's factual findings, as modified. Except as modified by our analysis, we also agree with the hearing officer's analysis of the dispositive legal issues, her conclusions of law, and her recommendations. ' 120.57(1)(1), Fla. Stat. (2000). Accordingly, the hearing officer's recommended order, as modified, is incorporated herein and ADOPTED as the Commission's final order and, therefore, the unfair labor practice charge is DISMISSED.

 

CONCLUSIONS OF LAW

 

1.                    The School Board is a public employer within the meaning of Section .

 

447.203(2), Florida Statutes.

2.            The BTU is an employee organization as defined by Section 447.203(11), Florida Statutes.

3.            The BTU is the certified bargaining agent for a unit of certified and/or instructional employees employed by the School Board.

4.            The School Board did not violate Section 447.501(1)(a) and (c), Florida Statutes, by refusing to bargain regarding the impact of the opt-out provisions contained in the health insurance contracts covering the BTU's bargaining unit members.

5.            The School Board did not violate Section 447.501(1)(a) and (c), Florida Statutes, by refusing to bargain over the impact of eliminating the sixth period and sixth period pay for bargaining unit members at the Center.

 

6.                     Neither party is entitled to attorney's fees and costs of litigation.

 

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, JACKSON and KOSSUTH, JR., Commissioners, concur.

 

I HEREBY CERTIFY that this document was filed and a copy served on each

party on March 8, 2001.

 

***END***