GADSDEN CLASSROOM TEACHERS' ASSOCIATION, FTP-NEA, CHARGING PARTY,

v.

THE SCHOOL BOARD OF GADSDEN COUNTY, FLORIDA, RESPONDENT.

Docket No. CA-82-101; Order No. 83U-126

May 20, 1983

Before Powers, Chairman; Brooks and Renovitch, Commissioners

Unilateral Change -- Past Practice -- Codification Of Past Practice -- 72.612, 72.642, 72.667

Teachers' union's charge, alleging that school board, during status quo period following expiration of collective agreement, unlawfully adopted student assignment policy that allegedly changed prior practice allowing teachers' children to attend schools where teachers worked, was dismissed where union submitted evidence of only one occasion of out-of-zone student assignment, which was insufficient to prove alleged prior practice.

 

Unilateral Change -- Discontinuation Of Dues Deductions -- Alteration Of Status Quo -- 24.151, 43.84, 72.641

Under Section 447.303 of Act, school board was required to continue payroll deductions for union dues in amount specified on employees' deductions authorization forms in board's possession, where employees had not revoked their authorizations of payroll deductions, and regardless of whether parties' collective agreement had expired. Fact that union dues had increased did not justify board's demand for new authorizations and discontinuation of deductions altogether where, in two preceding years, board honored cards despite increase in dues. However, although payroll deduction authorization need not specify precise amount to be deducted, where authorization does so specify, employer is not required to deduct amount exceeding specified amount.

 

Refusal To Bargain -- Health Insurance Premiums -- Duty To Provide Information Concerning Increases -- 41.7, 43.131, 72.77

School board, during negotiations for successor contract, was not obligated to notify union of premium increases for health insurance mandated by insurance carrier where union did not demand information on anticipated increases, even though premiums had increased periodically during past decade, and board did not plan to change status quo, namely, board's contributing entire amount for employees' personal coverage, and employees' contributing entire amount for optional dependent coverage.

 

Interference -- Refusal To Bargain -- Direct Communications With Employees -- 72.17, 72.55

School board lawfully distributed two memoranda, concerning increased health insurance premiums and status of ongoing collective negotiations, directly to employees, where memoranda were accurate, were presented to union on day preceding distribution, and did not have effect of enlisting employees to withdraw or abandon their support for union through coercive statements.

 

  Ronald G. Meyer and Pamela Cooper, Tallahassee, attorneys for charging party.

  Claude B. Arrington, Quincy, attorney for respondent.

ORDER

On October 15, 1982, the Gadsden Classroom Teachers' Association, FTP-NEA  (CTA), filed an unfair labor practice charge alleging that the School Board of Gadsden County (School Board or Board) violated Section 447.501(1)(a) and (c), Florida Statutes (1981),^[1] by unilaterally altering the status quo regarding health insurance, dues deduction and student assignment policy. The CTA further asserted that the School Board circumvented its bargaining representative by dealing directly with bargaining unit members during the period following the expiration of the parties' 1979-82 collective bargaining agreement on June 30, 1982.

On January 6, 1983, an evidentiary hearing was conducted before a Commission hearing officer in Tallahassee, Florida. At that time, all parties had the opportunity to appear, present evidence, and cross-examine witnesses. On February 21, 1983, the hearing officer issued a recommended order (HORO), a copy of which is attached hereto and incorporated herein. In the order the hearing officer concluded that the School Board violated Section 447.501(1)(a) and (c) by discontinuing dues deductions for membership fees, increasing the premium for bargaining unit members' dependent medical health insurance, sending notice of the insurance premium increase directly to bargaining unit members, negotiating directly with unit members, and failing to bargain in good faith with the CTA. However, he determined that the School Board had not unlawfully altered the status quo  by imposing new student assignment policies since there had been no past practice permitting the children of teachers to attend the school where a parent teaches. The hearing officer further recommended that the School Board be ordered to pay the CTA its reasonable attorney's fees and litigation costs.

On March 23, 1983, the School Board filed twelve exceptions to the hearing officer's recommended order and supported its exceptions with a brief.^[2]  On the same date, the School Board also filed a request for oral argument. On March 29, 1983, the Commission granted the request and scheduled the oral argument. On April 4, 1983, the CTA filed its response in opposition to the School Board's exceptions and in support of the hearing officer's recommended order.^[3]  On April 5, 1983, the parties appeared before the Commission for oral argument in support of their respective positions regarding the recommended order.

Based upon our examination of the entire record in this case and our review of the exceptions, we conclude that the hearing officer's findings of fact, as modified herein, are supported by competent substantial evidence and that the proceedings upon which these findings are based comply with the essential requirements of law. Accordingly, the Commission adopts the hearing officer's findings of fact as its own, with the following corrections noted below in paragraph 5, Section IV B, of the recommended order. The charges are made to correct certain inaccuracies in that paragraph. It is amended to read:

On June 16, 1982, at the beginning of negotiations, the CTA proposed to amend the existing provisions of Article XII by changing "individual coverage" to "family coverage." On July 20, 1982, the School Board countered with an offer capping its contribution to the individual insurance premium at $22.00 monthly. In addition, the proposal omitted the following language contained in the expired agreement: "It is also agreed that no insurance benefits presently in force shall be changed, with the exception that benefits may be increased without further negotiations." On August 24, 1982, the CTA counter-proposed that the 1979-82 contract language be retained. On August 26, the School Board made an offer identical to its July 20 offer except that it raised the cap to $35.00. Finally on September 1, the School Board offered to increase the proposed cap to $50.58 monthly. (R-15-23, Joint Exhibit 9).

  None of the School Board's exceptions relate to the hearing officer's findings of fact. All concern the hearing officer's analysis and recommendations regarding the School Board's alleged unilateral changes during negotiations, its alleged refusal to bargain in good faith and the remedies found appropriate in light of the facts of the case.

STUDENT ASSIGNMENT ISSUE

With regard to the School Board's alleged unilateral change in student assignment guidelines, the hearing officer concluded that the CTA failed to establish that the School Board altered the status quo  or otherwise violated Section 447.501(1)(a) and (c) by imposing a "new" student attendance policy in September or October, 1982. He, therefore, recommended that the Commission dismiss that portion of the unfair labor practice charge. Neither the School Board nor the CTA raised objections to the hearing officer's resolution of this matter.

Upon consideration of the record, we concur with the hearing officer's discussion and conclusions regarding the School Board's codification of its student assignment policy and, accordingly, dismiss the CTA's charge as it relates to that issue.

DUES DEDUCTION ISSUE

In exceptions 1 through 7, the School Board objects to the hearing officer's ultimate findings and conclusion that the School Board violated Section 447.501(1)(a) and (c) by unilaterally discontinuing dues deduction for CTA membership fees. The School Board argues that it did not change the status quo but simply followed the terms of the expired collective bargaining agreement between the parties. The School Board reasons that, because membership dues increased and the authorization form provided for a specific amount to be deducted, it was obligated to require new forms specifying the increased amount, notwithstanding the fact that it had not required revised dues authorization cards when there were dues increases during the 1980-81 and 1981- 82 school years. In support of that position, the School Board contends that the terms of the 1979-82 contract granted the Superintendent plenary authority to require new dues authorization cards from the entire membership and, indeed, obligated him to do so in order to avoid potential liability for the amount collected in excess of that authorized.

On its face, the dues authorization form provides a space for both the beginning and the ending dates for the deduction of membership dues. However, there is no record evidence to show that the expiration date was completed on any form or, indeed, that the form was intended by either party to have validity for only one year.^[4]  To the contrary, the record indicates that the School Board utilized the forms as if they contained no expiration dates. The CTA representative was given only the number of forms necessary for new CTA members to sign prior to September 1 of the 1980-81 and 1981-82 school years. Further, during those years, CTA members had their dues deducted by the School Board at increased rates without having revised their authorization forms on file with the Board or having signed new forms.

The deductions continued on this basis until the School Board demanded all new authorization forms from the CTA's membership on August 24, 1982. The School Board provided the CTA with one week to secure these forms. Thereafter, the School Board ceased all payroll dues deductions for those CTA members whose new forms had not been delivered to the Board by September 1, 1982, and refused to honor the authorization forms already on file for employees. As a consequence, if a CTA member did not submit a new form with the current rate of the CTA's membership dues, the School Board refused to honor the member's existing form on file containing a lesser amount. The School Board contends that its failure to require "current" forms for the CTA membership during the two years preceding the expiration of the parties' agreement was an "awful mistake" and that the termination of payroll deductions for a number of employees who were members of the CTA was within the School Board's discretion under the provisions of Article II, Section G, of the 1979-82 agreement.

The hearing officer concluded that the School Board's actions prior to its August 24, 1982, demand for new forms constitutes a past practice which gave the employees in the bargaining unit "a reasonable expectation that their dues would continue to be deducted after the expiration of the agreement and during negotiations for a successor agreement." (HORO at 21). He further determined that, while the School Board may have been justifiably concerned about its potential liability for collecting sums greater than the amount on the face of the old authorization forms, it could not terminate dues deductions under the provisions of Article II, Section G, because those provisions did not contain a "clear and unmistakable" waiver of the CTA's right to dues deduction. (HORO at 20)

We agree with the hearing officer's conclusion that CTA members had a reasonable expectation that their dues would continue to be deducted after the expiration of the parties' agreement and during negotiations for a successor agreement. Central Florida Professional Fire Fighters Association, Local 2057 v. Board of County Commissioners of Orange County,  8 FPER p13205 (1982). Additionally, Section 447 .303 required the School Board to continue processing forms that were in its possession for the amount specified on those forms, unless CTA members revoked their authorizations for payroll deduction of membership dues. Discontinuation of dues deduction from the paychecks of bargaining unit members, absent revocation of the authorization for such by the members themselves, is prohibited, whether or not there is a collective bargaining agreement in effect.  Liberty County NEA/FTP-NEA v. School Board of Liberty County,  6 FPER p11012 (1979); Edison Community College Faculty Federation, Local #3513 v. Edison Community College, 4 FPER p4253 (1978). The CTA members whose dues deductions were terminated in this case had not revoked their authorizations to have the amount specified on their forms deducted from their paychecks. Nor, for the reasons set forth by the hearing officer and adopted as our own, had the CTA clearly and unmistakably waived its statutory and contractual rights to have membership dues deducted.

Under the circumstances of this case, where the contractual dues deduction provision was susceptible to interpretation and the School Board had honored the authorization cards on file for two years without requiring new ones, the School Board was obligated to continue honoring those cards up to the amount authorized thereon rather than requiring new cards before processing any amount. Therefore, by terminating payroll deductions for employees who failed to submit authorization cards with the amount of the "current" membership dues by September 1, 1982, the School Board violated Section 447.501(1)(a) and (c).

We disagree with the hearing officer's analysis in this regard only to the extent that it might be interpreted to require the School Board to continue dues deductions for amounts in excess of those authorized on the forms. While a payroll dues deduction authorization need not specify the precise amount to be deducted, when the form itself contains a particular amount, the public employer's is not required to deduct an amount exceeding the specified amount. Accordingly, the School Board's exceptions 1 through 7 are denied.

HEALTH INSURANCE ISSUE

In exceptions 8 and 9 the School Board objects to the hearing officer's conclusion that it failed to bargain in good faith regarding health insurance where: (1) the hearing officer concluded that the School Board maintained the status quo  under the collective bargaining agreement that expired June 30, 1982; and (2) the unfair labor practice charge did not allege that the School Board failed to bargain in good faith regarding the 1982-83 contract. In exception 11 the School Board argues that the recommended remedy of reimbursement of the amount of the dependent health insurance coverage to unit employees is improper and punitive, particularly since such a remedy itself distorts the status quo  by requiring the School Board to pay the dependent coverage for the first time.

The hearing officer concluded that the School Board did not alter the status quo  regarding health insurance, as alleged by the CTA in its charge, because the School Board assumed payment of the increased premium for individual employee coverage. Nonetheless, the hearing officer found that the School Board refused to bargain in good faith by: (1) failing to advise the CTA of the probable premium increase; (2) not discussing the various insurance plans and premiums available with the CTA once the premium increases in individual and dependent coverage were certain; (3) announcing implementation of an insurance plan directly to the bargaining unit members; and (4) failing to negotiate with an open mind and a sincere desire to come to agreement.

Under the 1979-82 contract the School Board paid the entire premium for the personal health insurance of its employees. It continued to pay the full premium for employees after the contract expired, including the increase mandated by the insurance carrier effective September 1, 1982. The contract did not obligate the School Board to pay any part of the health insurance premium for dependent coverage. Employees themselves paid for such optional coverage. When the insurance carrier increased the premium, the School Board continued its practice of paying no part of that premium. In addition to making no changes its past practice of paying premiums, the School Board also made no changes to the health insurance plan itself, including the coverage ad deductible. Consequently, we agree with the hearing officer's finding that the School Board maintained the status quo  regarding health insurance.

Further, the School Board bargained throughout negotiations regarding health insurance. On June 16, 1982, the CTA presented its first health insurance proposal. After months of negotiations, on September 1, 1982, it rejected the School Board's final offer. There is no evidence that during negotiations the CTA requested or that the School Board refused to provide the CTA with any information concerning potential changes in either the plan or premium. The CTA did not ask for such information even though health insurance premiums for both individuals and dependents had increased periodically since 1971.

Where a public employer maintains during negotiations the status quo  of a mandatory subject of bargaining such as health insurance and does not refuse to provide relevant information on the subject in response to a bargaining agent's request, it is not obligated to notify the agent of information obtained from an insurance carrier concerning an anticipated or actual rate increase.  West Palm Beach Association of Fire Fighters, Local 727 v. City of West Palm Beach, No. CA-83-021 (PERC, April 29, 1983); Hollywood Fire Fighters, Local 1375, AFL- CIO v. City of Hollywood,  8 FPER p13324 (1982), appeal dismissed,  No. 82- 1916 (Fla. 4th DCA, April 13, 1983). Applying this statement of the law to the above-stated facts, the School Board did not have an obligation to notify the CTA of the premium increases mandated by its health insurance carrier. During ongoing negotiations, the duty to notify a bargaining agent of insurance premium increases arises if an employer plans to change the status quo  of payment of such increases or if the certified agent demands information on anticipated increases. Because neither situation exists in this case, the School Board's failure to notify the CTA of premium increases was not an unfair labor practice.

Further, the School Board's proposals and counter-proposals regarding insurance during negotiations did not violate Section 447.501(1). Maintenance of a hard bargaining posture alone does not constitute a refusal to bargain in good faith. Manatee Education Association, FEA/United AFT, AFL-CIO v. Manatee County School Board,  8 FPER p13408 (1982); Hollywood Fire Fighters, Local 1375 v. City of Hollywood,  8 FPER p13324 (1982).

Therefore, exceptions 8 and 11 are granted, and exception 9 is moot. Consequently, the School Board did not commit an unfair labor practice by its conduct concerning health insurance. Accordingly, the CTA's charge as it relates to the issue of insurance negotiations is dismissed.

DIRECT DEALING ISSUE

On September 15, 1982, the School sent to all employees a memorandum entitled "Fact Sheet: Monthly Cost of Employee Insurance" and another entitled  "Report of Collective Bargaining Negotiations." The first one summarized the changes in the insurance occasioned by the premium increases, and the other conveyed information from the bargaining table which reflected the respective positions of the parties. The memoranda were given to the CTA on September 14, 1982, one day before the School Board distributed them directly to employees, and before the increased premiums had to be paid for dependent coverage. The hearing officer concluded that the School Board's two memoranda were coercive and that distribution of them constituted direct dealing with unit employees in violation of Section 447.501(1)(a) and (c). In exception 10 the School Board objects to the hearing officer's conclusion.

In the two September 15, 1982, memoranda, the School Board directly communicated health insurance information to its employees. Section 447.501(3) expressly preserves a public employer's right to engage in noncoercive communication with its employees, even during ongoing contract negotiations. In finding that such noncoercive expression^[5] does not constitute an unlawful bypassing of the certified bargaining agent in the establishment of wages, hours and terms and conditions of employment, the National Labor Relations Board has stated the following:

The fact that an employer chooses to inform employees of the status of   negotiations, or of proposals previously made to the Union, or of its version of a breakdown in negotiations will not alone establish a failure to bargain in good faith....

Proctor & Gamble Manufacturing Co.,  160 NLRB 334, 340, 62 LRRM 1617, 1620 (1966); see also IBT, Local 59 v. Stanley Oil Co., Inc.,  213 NLRB 219, 225 (1974). Thus the School Board has the right to inform its employees in noncoercive terms concerning health insurance premium increases, the status of negotiations, and its view concerning the CTA's rejection during negotiations of its health insurance proposals.  Civil Service Employees Association, Inc. v. Ogdensburg City School District, 11 PERB p4567 (N.Y. 1978).

In testing whether there is competent substantial evidence to support the hearing officer's conclusion that the two memoranda were coercive, several record facts are of significant probative value. First, it is undisputed that all of the information contained in the memoranda was accurate, factual, and not misleading. Second, because the premium increases for dependent coverage had to be paid during September, 1982, the School Board had to notify employees of these increases before payment was due. Finally, no witnesses testified that they  considered the memoranda to be coercive. An absence of these facts would not in and of itself make any statement in the memoranda coercive, for none was such. However, the presence of these facts undermines the hearing officer's conclusion that the memoranda themselves contained coercive statements.  Dow Chemical Co. v. NLRB,  660 F.2d 637, 644 (5th Cir. 1981).

On the facts of this case, we do not conclude that the School Board's direct distribution of the memoranda to employees unlawfully bypassed or undermined the CTA. The record reveals that the CTA was supplied with copies of the memoranda a day before they were distributed to employees. Moreover, as previously noted, the School Board's reason for distributing the memoranda was to notify employees of forthcoming increases in dependent coverage rather than to subvert ongoing negotiations on the health insurance issue. Whether the communication to employees is informational or unlawful depends upon whether it has the effect of enlisting unit employees to withdraw or abandon their support of their certified agent through coercive statements.  UAW, Local 259 v. Wantagh Auto Sales, Inc.,  177 NLRB 150, 154 (1969). Such is not the situation in this case, and therefore the School Board did not commit an unfair labor practice by distribution of the two memoranda relating to health insurance.

We therefore find the School Board's exception to be meritorious and, thus, reject the hearing officer's analysis and conclusion on the issue of direct dealing. Rather, we find that the issue is not supported by competent, substantial evidence in the record. Accordingly, we dismiss the CTA's direct dealing charge.

FAILURE TO BARGAIN IN GOOD FAITH

As we discussed above, we reject the hearing officer's conclusions regarding the School Board's failure to bargain in good faith regarding health insurance and direct dealing with the unit employees. Thus, the indicia of bad faith bargaining upon which the hearing officer based his determination that the School Board's course of conduct constituted bad faith negotiations has been reduced to the single act of refusing to honor duly submitted authorizations for payroll dues deduction. This sole violation of Section 447.501(1)(a) and (c) is not enough to support a conclusion that the School Board's conduct during the entire course of negotiations demonstrated a failure to bargain in good faith. Hillsborough Transit Authority v. Local 1464, Amalgamated Transit Union,  7 FPER 12400 (1981); Board of County Commissioners of Charlotte County v. Industrial and Public Employees Union, Local 998,  7 FPER p12292 (1981). Therefore, we also reject the hearing officer's conclusion that the School Board's course of conduct during negotiations demonstrated a failure to bargain in good faith. Accordingly, to the extent that the CTA's charge can be read as alleging a course-of-conduct violation, the charge is dismissed.

ATTORNEY'S FEES AND COSTS

The hearing officer recommended that attorney's fees be awarded to the CTA because the law regarding status quo  was clear, and consequently, the School Board's violation of the law was blatant. In exception 12 the School Board objects to the award of fees since it contends there was no violation of Section 447.501(1)(a) and (c).

We have the discretion under Section 447.503(6)(a) to award a charging party its reasonable attorney's fees and costs when it prevails on an issue which the charged party knew or should have known constituted an unfair labor practice. Anderson v. IBPAT, Local 1010,  6 FPER p11114 (1980), aff'd,  401 So.2d 824 (Fla. 5th DCA 1981), cert. denied,  411 So.2d 382 (Fla. 1981). In view of our discussion of the other issues above, we find an award of attorney's fees and litigation costs of the CTA appropriate only in regard to the School Board's unlawful refusal to grant dues deduction. Because Section 447.303 clearly entitled CTA to its members' duly filed dues deduction authorizations, the School Board's refusal to honor them after September 1, 1982, constituted a blatant violation for which fees are appropriate.  Board of County Commissioners of Orange County,  8 FPER p13205 (1982); Orlando Professional Fire Fighters, Local 1365 v. City of Orlando,  7 FPER p12369 (1981).

Thus, for the reasons set forth in the recommended order, we adopt the hearing officer's recommendation that attorney's fees and costs of litigation be awarded to the CTA; however, we limit the award granted to the amount of fees and costs attributable to the School Board's dues deduction violation. The CTA must submit its request for such an award in accordance with Florida Administrative Code Rule 38D-14.04(3).

CONCLUSIONS OF LAW

Upon review of the entire record in this case, the Commission makes the following conclusions of law:

1. The School Board of Gadsden County, Florida, is a public employer within the meaning of Section 447.203(2).

2. The Gadsden County Classroom Teachers' Association, FTP-NEA, is an employee organization within the meaning of Section 447.203(11), and is the certified bargaining agent for all instructional employees employed by the School Board.

3. By discontinuing dues deductions for membership fees, the School Board interfered with a right provided by Section 447.303 and unilaterally changed a term and condition of employment. Such conduct is a violation of Section 447.501(1)(a) and (c).

4. The School Board did not act unlawfully through the remaining conduct in the CTA's charge.

ORDER

  Pursuant to Section 447.503(6)(a), the Public Employees Relations Commission ORDERS that:

1. The School Board cease and desist from:

a. Discontinuing dues deductions for the CTA's membership fees, absent the revocation of authorization by individual employees; and

b. In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Chapter 447, Part II, Florida Statutes (1981).

2. The School Board take the following affirmative action:

a. Post for sixty days in conspicuous places where notices to Gadsden County School Board instructional personnel are customarily posted, and at a time when such employees customarily perform duties at those places, the attached Notice to Employees stating that the School Board shall cease and   desist from its actions set forth in paragraph 1, above, and will take the affirmative action set forth in paragraph 2;^[6] [FN6]

b. Honor the authorizations for dues deductions that were in its possession, and not revoked or replaced, on September 1, 1982, and immediately reinstate dues deductions for all CTA members who filed such authorizations for dues deductions.

c. Pay the CTA its reasonable costs and attorney's fees for prosecuting the dues deduction issue in this case in an amount determined pursuant to Florida Administrative Code Rule 38D-14.04; and

d. Notify the Public Employees Relations Commission in writing within twenty days of the date of this order of the steps that have been taken to comply with this order.

3. All charges other than the one relating to the School Board's failure to process authorizations for dues deductions are dismissed.

It is so ordered. ______

 

[Hearing Officer=s Recommended Order not included]

9 FPER p 14202 END OF DOCUMENT