[[Summary: "We conclude that it is appropriate to provide an insulated period to ensure the neutrality of the legislative body when acting pursuant to 447.403(4)(c) and (d) in instances when the parties agree to waive the appointment of a special master and proceed directly to the legislative body. As noted previously, inOcala we held that the insulated period commences when the special master's recommendations are rejected. It begins at this time because it is not until the special master's recommendations are rejected that it becomes apparent that the legislative body will have to resolve the impasse. We conclude that the analogous insulated period if no special master is utilized begins when the parties agree to waive the appointment of a special master. This is a comparable point in time to the rejection of the special master's recommendations, because once the parties waive the special master process it is evident that the legislative body will be required to resolve the impasse."]]

Jacksonville Association of Fire Fighters, IAFF, Local 122, Charging Party,
v.
City of Jacksonville, Respondent,

++++++++++++++++++++++++++

City of Jacksonville, Charging Party,
v.
Paul Dinkins and Jacksonville Association of Fire Fighters, IAFF, Local 122, Respondent.
Docket Nos. CA-89-006, CB-89-003;
Order No. 89U-277
September 28, 1989

Before Mattimore, Chairman; Sloan and Poole, Commissioners

Kenneth Vickers, Jacksonville, attorney for Paul Dinkins and Local 122.
Leonard A. Carson and Lucille E. Turner, Tallahassee, and Brian M. Flaherty, Jacksonville, attorneys for City of Jacksonville.

ORDER

MATTIMORE, Chairman,

On February 6, 1989, the Jacksonville Association of Fire Fighters, IAFF, Local 122 (Local 122), filed an unfair labor practice charge alleging that the City of Jacksonville (City), violated Section 447.501(l)(a) and (c) Florida Statutes (1987). On February 15 the Commission's General Counsel found sufficient the portion of the charge alleging that the City failed to bargain in good faith with Local 122 during the impasse resolution process. The City filed its answer to the charge on March 7 and denied that it failed to bargain in good faith.

On March 7 the City filed an unfair labor practice charge alleging that Local 122, and its President, Paul Dinkins, violated Section 447.501(2)(a), (b), and (c), by refusing to bargain in good faith with the City. The City also moved to consolidate for hearing its unfair labor practice charge with Local 122's charge against the City. On March 15 the Commission's General Counsel found the charge sufficient insofar as it alleged a violation of Section 447.501(2)(a) and (c); however, he dismissed that portion of the charge alleging a violation of Section 447.501(2)(b). On March 16 the Commission consolidated the charges for hearing. Local 122 and Dinkins filed their answer to the charge on April 7 and denied that they bargained in bad faith. An evidentiary hearing was conducted by a Commission-appointed hearing officer on April 20 and 21.

On June 30 the hearing officer issued his recommended order in which he concluded that the City acted unlawfully when representatives of the Mayor had improper communications with members of the City Council after impasse had been declared. The hearing officer also determined that an award to Local 122 of its reasonable attorney's fees and costs of litigation was appropriate. As for the charges against Local 122 and Dinkins, the hearing officer concluded that they did not commit an unfair labor practice, and that an award of attorney's fees to the City was not appropriate. The City timely filed exceptions to the hearing officer's recommended order, a brief, and a request for oral argument. Local 122 filed a response to the City's exceptions on August 15. Oral argument was heard by the Commission on August 30.

The City and Local 122 entered into a collective bargaining agreement effective October 1, 1986 through September 30, 1989. Pursuant to the contract's reopener provision, wages and mutually agreed upon articles were subject to negotiations in 1987 and 1988. On August 25, 1988, the parties began negotiations over wages and the employee assistance program (EAP). Leonard A. Carson was the City's chief negotiator, and his counterpart for Local 122 was Paul Dinkins. The parties held two more negotiation sessions on September 8 and September 23. Although the parties were able to reach agreement on the issues concerning the EAP, on September 23 impasse was declared over wages. The parties agreed to waive the appointment of a special master and to have the City Council resolve the impasse.

The City Council's Finance Committee, which was delegated authority by the City Council to negotiate labor agreements, held a public hearing on October 11. At this nearing, Carson and Dinkins presented arguments in support of their respective impasse positions. The Finance Committee voted in favor of the City's position. The City Council met later that same day to consider the Finance Committee's recommendation and resolve the impasse. Neither side made a verbal presentation to the City Council, which voted unanimously in favor of the City's position.

On October 21 the City discovered that it had erroneously computed the value of a wage step increase. Thus, the wage offer adopted by the City Council was based upon incorrect information. After being notified of the error, Local 122 refused to submit the City Council's action for ratification. Thereafter, both Local 122 and the City filed unfair labor practice charges.

Local 122 alleged that the City committed an unfair labor practice when representatives of the Mayor discussed the City's impasse position with members of the City Council after impasse had been declared, but prior to the City Council resolving the impasse. The first incident of alleged improper conduct occurred on September 27 during a meeting, and the second occurred on October 11, immediately prior to the City Council meeting scheduled to resolve the impasse.

The City alleged that Local 122 engaged in unlawful conduct on October 11 when three representatives of Local 122 met with several council members and discussed the merits of its impasse position. The City also alleges that Local 122's and Dinkins' conduct during the entire negotiation and impasse process demonstrates that they were bargaining in bad faith.

Each party is alleging that the other acted unlawfully by discussing the merits of their impasse position with members of the City Council after impasse was declared. The facts of this case raise novel issues regarding the duties of the parties and the legislative body during impasse. We therefore take this opportunity to explicate the standards which shall govern conduct when impasse is declared and the parties waive the special master process.

Section 447.309(l) provides that the certified bargaining agent and the chief executive officer of the public employer shall bargain collectively in the determination of the employees' terms and conditions of employment. This statutory provision also directs the chief executive officer to "consult with, and attempt to represent the views of the legislative body of the public employer". If the parties do not reach an agreement and impasse is declared, the legislative body is charged with taking "such action as it deems to be in the public interest, including the interest of the public employees involved, to resolve all disputed impasse issues....." Section 447.403(4)(d), Fla. Stat. (1987). Thus, when the public employer is the same entity as the legislative body, the role of the legislative body changes from that of an advocate during negotiations to that of a neutral during impasse, acting in the best interest of the public and its employees.

The Commission first addressed the legislative body's responsibility during impasse in Boca Raton Fire Fighters, Local 1560 v. City of Boca Raton, 4 FPER & 4040 (1978). The Commission held that it will closely scrutinize the actions of a legislative body once either party rejects all or part of the special master's recommended decision pursuant to ' 447.403(3), to ensure that the legislative body provides each party with an opportunity to present their impasse positions and have them considered fairly. The Commission explained that this duty of fairness emanates from the employee organizations' lack of significant alternatives, particularly the ability to strike, once impasse has been declared. Thus, the legislative body must endeavor to avoid any appearance of impropriety which might indicate that a party is not receiving equal treatment.

A similar issue was considered by the Commission in IAFF, Local 2135 v. City of Ocala, 5 FPER & 10252 (1979), aff'd. 394 So.2d 1156 (Fla. 1st DCA 1981). This case focused on the responsibilities of the parties once the special master's recommendations have been rejected. The Commission held that "between the time of rejection of all or any part of the Special Master's recommended decision and convening of the legislative body hearing," the parties at impasse should avoid "ex parte communications with members of the legislative body regarding the impasse items......" 5 FPER at 282. The period of time within which the parties are prohibited from communicating with members of the legislative body is called the "insulated" period. See City of Orlando v. Orlando Professional Fire Fighters Local 1365, 9 FPER & 14133 at 265 (1983). The Commission opined that this "prohibition of communications ... is necessary to insure the neutrality of the legislative body which is essential to the ' 447.403 impasse resolution process."

The Commission also discussed the restrictions on parties at impasse in Hollywood Fire Fighters, Local 1375, IAFF v. City of Hollywood, 11 FPER & 16001 (1984), rev'd, 476 So.2d 1340 (Fla. 1st DCA 1985). There, the Commission held that a public employer violated its duty of fairness when the city attorney and city manager engaged in off-the-record discussions during the impasse hearing. The Commission noted that this type of discussion gives "the appearance of impropriety where the subject of the communication is unknown and the communication occurs at a public hearing before the legislative body." 11 FPER at 4. On appeal, the First District Court of Appeal reversed the Commission and held that the discussion did not give the appearance of impropriety because there was no evidence that it concerned the merits of the impasse issues.

In all of the cases discussed above, the parties used the entire impasse resolution process outlined in ' 447.403. That is, the parties declared impasse, employed the services of a special master, rejected all or part of the special master's recommendations, and ultimately had the impasse resolved by the legislative body. Here, to the contrary, the City and Local 122 invoked a 1984 amendment to ' 447.403(2) which allows parties to waive the appointment of a special master. Thus, the City and Local 122 declared impasse and proceeded directly to a legislative body hearing without receiving a special master's recommendation.

The City argues that this factual distinction makes the analysis expounded in Boca Raton and Ocala inappropriate to the instant case. The City contends that there should not be an insulated period when the parties waive the special master process because the public employer would lose some ability to continue negotiations as a result of the negotiator's limited access to the legislative body. The City's argument hinges on its belief that when the appointment of a special master is waived the impasse resolution process is best served if the parties are encouraged to freely negotiate without the restrictions afforded by an insulated period, until such time as a settlement is reached or the legislative body resolves the impasse. We disagree.

If the parties desire to continue negotiating, the public employer's chief executive officer and negotiator may obtain unrestricted access to the legislative body by requesting that the employee organization waive any objection to these contacts. See IAFF, Local 1365 v. City of Orlando. 4 FPER & 4214 (1978), aff'd. 384 So.2d 941 (Fla. 5th DCA 1980). This process is workable because an employee organization interested in a negotiated resolution of the impasse will grant the waiver. A party that is committed to a legislative resolution of the impasse is not likely to reach a negotiated settlement even in the absence of an insulated period.

The City also argues that an insulated period should not be recognized because a public employer which negotiates with more than one bargaining unit at a time, as in the instant case, is handcuffed in its negotiations if the negotiator is prohibited from consulting with the legislative body once impasse is declared with any one unit. The Commission's case law, however, has never prohibited a negotiator who is bargaining with more than one unit from consulting with the legislative body pursuant to ' 447.309(1) and discussing the status of negotiations of the remaining units which are not at impasse. Ocala only prohibits communication regarding the merits of the issues which are at impasse. Moreover, by virtue of its statutory authority to expeditiously take legislative action, the legislative body can limit the duration of the insulated period.

We conclude that it is appropriate to provide an insulated period to ensure the neutrality of the legislative body when acting pursuant to ' 447.403(4)(c) and (d) in instances when the parties agree to waive the appointment of a special master and proceed directly to the legislative body. As noted previously, in Ocala we held that the insulated period commences when the special master's recommendations are rejected. It begins at this time because it is not until the special master's recommendations are rejected that it becomes apparent that the legislative body will have to resolve the impasse. We conclude that the analogous insulated period if no special master is utilized begins when the parties agree to waive the appointment of a special master. This is a comparable point in time to the rejection of the special master's recommendations, because once the parties waive the special master process it is evident that the legislative body will be required to resolve the impasse.

In Ocala, the insulated period was defined as ending when the legislative body hearing convened. There, the Commission was faced with a legislative impasse resolution process which was not divided into more than one proceeding. It was assumed that the legislative body would resolve the impasse issues in the same meeting without interruption or ex parte communication. The experience in this case illustrates why this may not always be a valid assumption. In circumstances such as the instant one, we believe that it is important to continue the insulated period until final legislative action occurs. It is illogical to prohibit certain communication with the legislative body until a committee of the legislative body convenes to recommend a resolution of the impasse, and then allow unlimited communication during the period between the committee meeting and the meeting of the full legislative body for final resolution. The policy considerations which support the concept of an insulated period maintained until the commencement of the legislative body hearing also support its continued application until final resolution by the legislative body. Therefore, the insulated period commences when the special master process is waived and ends when legislative body resolves the impasse.

We now turn to a consideration of the type of communication that is prohibited during the insulated period. In Ocala the Commission held that parties should avoid "ex parte communications with members of the legislative body regarding the impasse items.." The City contends that a communication should be deemed improper only if it involves a substantive discussion of the impasse issues which prejudices the opposing party.

The Ocala and Boca Raton decisions emphasize that the legislative body has a duty of fairness and must seek to avoid the appearance of impropriety. We reaffirm this standard. It is not necessary that a party receive a tangible benefit or advantage from a communication, rather it is enough that a communication concerning the merits of the impasse issues occur. Therefore, we reject the City's argument that a party must demonstrate that it has been prejudiced by the communication. We conclude that communication during the insulated period is improper if it concerns the merits of the issues at impasse and is made in such a fashion as to deny the opposing party an adequate opportunity to respond. When impasse is declared and the special master is waived, it is in the best interest of the process that all of the parties' direct advocacy to members of the legislative body concerning the merits of the impasse be limited to the public hearing.

The City filed 76 exceptions to the hearing officer's findings of fact, and his rejection of certain of the City's proposed findings of fact. Because our resolution of these exceptions significantly affects the outcome of this case, we will consider these exceptions prior to a further discussion of the merits.

Exceptions to hearing officer's findings of fact

The City's exceptions 9, 10, 11, 12, 16(b) and (c), 17, 18, 19(a) and (c), 20(c), 23, 24(e), 30, 33(b), 39(a), 41 (f), and 45 are denied because the hearing officer's findings addressed in these exceptions are supported by competent, substantial evidence. Exceptions 15, 26, 28, 31, 32, 38, and 42 are denied because our resolution of other exceptions makes the resolution of these exceptions unnecessary.

In exception 13 the City contends that the hearing officer incorrectly found in finding 7 that Dinkins' statement to Carson about a heart and lung bill occurred prior to the opening of negotiations. The City argues that the statement actually occurred during a break in the first negotiation session. Our review of the record indicates that the City's contention is correct. (T 511-512). Therefore, this portion of the exception is granted and the finding is modified accordingly. The second part of the exception concerning the effect of Dinkins' statement on Carson is also granted because the finding is unnecessary. Similarly, because exception 14 concerns the same issue, we grant the exception and strike the last sentence of finding 8 as unnecessary.

The City asserts in exception 16(a) that there is no evidence to support the statement in finding 9 that Carson indicated the City would not negotiate unless Local 122 agreed to negotiate on subjects other than wages. We conclude that the record does not support the hearing officer's finding. Therefore, the exception is granted and the finding is modified accordingly.

In exception 19(b) the City objects to the hearing officer's statement in finding 13 that Dinkins "suggested" he would tell his membership that the City was not interested in the EAP. The City contends that Dinkins unequivocally stated, rather than suggested, that he would take this action. The record supports the City's contention. (City Exh. 34, p. 10). Therefore, this portion of the exception is granted and the finding is modified accordingly.

The City contends in exception 20(a), (b), and (d) that finding 14 must be clarified to accurately represent the discussion at the second negotiating session concerning the EAP. We strike those portions of finding 14 which indicate that Carson refused to discuss the EAP, or blocked Dinkins' attempts to clarify problems with the EAP. Upon review of the record, we modify the finding of fact to state that (1) Carson continually requested that Dinkins identify the problems with the EAP, (2) Dinkins demanded, not suggested, that the EAP director be used to resolve the EAP dispute, and (3) the EAP matter was resolved by Carson agreeing to a meeting between himself, Dinkins, and the EAP director. (City Exh. 34). Therefore, we grant exception 20(a). (b), and (d).

In exception 21 the City asserts that there is no evidence to support the second sentence of finding 15 which indicates that Carson was not negotiating over the EAP in a calm manner. Our review of a tape recording of the second negotiation session (City Exh. 29) reveals that Carson was calm when discussing the EAP. Therefore, the finding is clarified and the exception is granted on this point.

Exception 24(b) is granted to clarify finding 22 to state that Local 122 declared impasse. The record reflects that Local 122 declared impasse after the City made its final counter-proposal. (City Exh. 35, p. 72-76). Exception 24(b) is also granted to clarify that the City made Local 122 aware that it was willing to negotiate after impasse was declared. (City Exh. 35, p. 76). The City asserts in exception 25 that there is no evidence to support the hearing officer's statements in finding 24 that at the September 27 "shade" meeting Carson tried to convince the Finance Committee that the City's impasse position was correct. The record reveals that Carson told the committee members that the parties were at impasse, what each party's last offer was, and that an impasse hearing needed to be scheduled. (T 115, 265). There is no evidence to support a finding or inference that Carson directly informed the committee members that the City's impasse position was correct and that they should support it, or that the committee members were convinced by Carson that they had to support the City's impasse position. Therefore, this exception is granted and finding 24 is modified accordingly.

In exception 27 the City objects to statements in finding 25 which suggest that an unfair labor practice was not committed by Local 122 because Carson was unaffected by Dinkins' comments at negotiations, or to third parties, or in Local 122's newsletter. This exception is denied because the City is objecting to suggestions which it has gleaned from the findings, rather than to the findings themselves. We consider whether Carson was affected by Dinkins' conduct to be irrelevant to the resolution of this case.

The City next excepts to the hearing officer's statement in finding 26 that Dinkins, Local 122, and other employee organizations bargaining with the City were not aware that they were prohibited from meeting outside of formal negotiations with the Mayor or his representative to discuss bargaining issues. Mitchell Atalla, the Mayor's Chief Aide, testified that he told Dinkins in the Fall of 1988 that the Mayor's policy was that employee organizations had to negotiate with Carson. There is also evidence that Atalla plainly informed Dinkins during a telephone conversation on October 7 that he had to negotiate with Carson. Therefore, the record supports a finding that Dinkins was aware that he should not attempt to bargain with any City representative other than Carson. To the extent that these facts differ from finding 26, exception 29 is granted. Our resolution of this issue also resolves exception 33 (a), which is granted to the extent that it conforms with the above discussion.

The City objects in exception 34 to any suggestion in finding 29 that FOP President James Holderfield met with the Mayor while the FOP and the City were at impasse. The evidence reveals that Holderfield met with Atalla, not the Mayor. (T 181). Therefore, this exception is granted and finding 34 is clarified. Exceptions 35 and 36 except to findings 30 and 31 to the extent that they misrepresent the meeting Atalla had with Holderfiefd. The evidence reveals that Carson suggested Atalla and Holderfield meet to become better acquainted. Atalla and Holderfield met in Atalla's office on October 7, at which time they decided that they wanted to resolve their impasse. Atalla telephoned Carson to receive permission to discuss a settlement of the impasse. The FOP's attorney had previously given his consent to these discussions. After Carson gave his approval, the parties negotiated in Atalla's office. Carson was involved in these negotiations by telephone. He also drafted a proposal which was sent to Holderfield for his consideration. After several changes, they reached an agreement. (T 313-318, 491-493). Exceptions 35 and 36 are granted and findings 30 and 31 are modified in accordance with the facts stated above.

The City's exception 37 is granted to clarify finding 32 to note that the City's pre-hearing statement was hand-delivered to Dinkins on October 10. The City's exception 39(b) requests that we strike the hearing officer's statement in finding 35 that Carson was unaffected by any comments Dinkins made at the October 11 Finance Committee meeting because the record is void of evidence to support this statement. Because the hearing officer's finding is predicated upon Carson's subjective reaction to Dinkins' statement, it is not relevant to a determination of whether Dinkins' statement, viewed from an objective basis, constitutes an unfair labor practice. Therefore, we will disregard the finding and deny the City's exception as moot.

In exception 40(a) the City objects to the hearing officer's statement in finding 36 that "Finance Committee member Clarence Suggs stated during the council's meeting that he had difficulties in resolving the matter." The City's first objection, which we conclude has merit, points out that Suggs made the statement during the Finance Committee vote, not the City Council vote. (City Exh. 3). To this extent, exception 40(a) is granted and finding 36 is clarified. The City also argues that this finding is misleading because it suggests that Suggs' difficulty was caused by improper conduct of the City. We fail to perceive any such suggestion in the finding. Therefore, this ground for the exception is denied. In exception 40(b), the City asserts that the hearing officer erroneously stated in finding 36 that members of the administration were speaking to council members immediately after the Finance Committee vote. The record does not show that such discussions occurred, therefore. the exception is granted. We grant exception 40 (c) and (d) because there is no credible evidence that the City was aware that Councilman Forshee had questions of Local 122 after the vote, or that Dinkins or other Local 122 representatives knew Carson overheard their conversations.

Exception 40(e) is denied because the record evidence supports the finding that Carson did not object to the conversations that Local 122's representatives were having with the council members. The City's objection to footnote 20 is denied. Although the hearing officer appears to be making a legal conclusion that Local 122's conduct immediately following the Finance Committee vote was not improper, he later addresses this argument in the analysis section of his recommended order. In exception 40(f) the City objects to the hearing officer's finding that several events motivated the City to clarify its position with certain council members prior to the council meeting on October 11. We agree that the record does not support the hearing officer's finding. Therefore, exception 40(f) is granted and the finding of fact is modified accordingly.

To summarize the appropriate findings in finding 36, the evidence reveals that Dinkins and other Local 122 representatives spoke with members of the Finance Committee concerning the decision of the Finance Committee immediately after the vote on the afternoon of October 11, and that Carson overheard these discussions but did not object to them.

The City asserts in exception 41 that finding 38 is not supported by competent, substantial evidence. We agree with the City and reject the first four sentences of finding 38. The evidence supports the following finding of fact: On October 11, following the Finance Committee meeting and prior to the City Council meeting, B.J. Laster, the Mayor's City Council Liaison, told Carson that Councilman Matthew Carlucci had questions about the City's prehearing statement. Laster asked Carson if he could go to Carlucci's office and answer the questions. Carson told Laster that he was too busy to visit Carlucci. James Linn, Carson's partner, overheard Laster's conversation with Carson and volunteered to speak with Carlucci. Carson told Linn to answer Carlucci's questions and report back to the council chambers. Russ Gill and B.J. Laster accompanied Linn to Carlucci's office where they met with Carlucci for about 10 minutes. Carlucci stated that he had seen the City's prehearing statement, but that he had not had a chance to look at it in detail. Linn then summarized and explained the prehearing statement and asked Carlucci if he had any questions. Carlucci had no questions. The three then left Carlucci's office. (T 227-230, 540-544). We grant exception 41(a), (b), and (c), and modify finding 38 to incorporate the above findings.

In exception 41(d) and (e), the City objects to the hearing officer's statement that other representatives of the Mayor met with various council members prior to the October 11 City Council meeting. In making this finding of fact, the hearing officer apparently relied on Dinkins' testimony that he was told by certain council members that the Mayor's representatives were meeting with them prior to the council vote and requesting that they not vote for Local 122's impasse position. The City argues that this testimony is not competent evidence because it is uncorroborated hearsay. We disagree with the City because Dinkins' testimony falls within the admissions exception to the hearsay rule. ' 90.803(l 8), Fla. Stat. (1 987). The council members are agents of the City. Thus, their statements can be attributed to the City. Therefore, Dinkins' statements are sufficient evidence upon which to base a finding of fact. See ' 120.58(I)(a), Fla. Stat. (1987). Accordingly, we deny exception 41(d) and (e).

The City argues in exception 43 that the hearing officer's statement in footnote 24 that "Carson saw Paul Dinkins on October 24 and decided not to speak with him in person," is erroneous because it implies that Carson intentionally avoided Dinkins. We grant the exception and clarify the footnote to indicate that Carson saw Dinkins on October 24, but was unable to speak with him because he was negotiating with another bargaining unit. Exception 44 is granted to clarify finding 40 to state that the City would present the amended pay raise to the City Council for its consideration. (City Exh. 16). In exception 46 the City asserts that footnote 26 is not supported by competent, substantial evidence. Upon review of the record, we conclude that the footnote is unnecessary and grant the exception. The evidence demonstrates that Dinkins told Carson to include a two percent raise in the contract to be presented to the fire fighters for ratification. A finding concerning the motivation for Dinkins' statement is unnecessary.

In exception 47(a) the City objects to the statement in footnote 27 that unidentified persons threatened to engage in activities designed to make the Mayor appear anti-firefighter. The City contends that Atalla's testimony makes it clear that it was the "fire fighters union" that made these threats. We agree. (T 327). Therefore, exception 47(a) is granted and the finding is modified accordingly. We deny exception 47(b) because whether the Mayor was affected or upset by Dinkins' conduct is irrelevant to the resolution of this case.

Exceptions to rejected proposed findings of fact

The City's exception 48 is denied because the information concerning Carson and his bargaining strategy contained in the City's proposed findings 5, second sentence; 7, last sentence; 13; 19; 20; 21; and 171, second sentence have been sufficiently detailed in findings 3 and 4. Exceptions 49, 69, 70, 71, and 72 are denied because the proposed findings referenced in the exceptions are unnecessary. The following exceptions are granted because the substance of the proposed findings addressed in the exceptions have been included in the hearing officer's findings, as modified by the Commission: 51; 52, as to proposed findings 88, 91, 94, 95, and 100: 54; 55, as to proposed findings 153, 154, 158, 159, and 163: 56, as to proposed findings 173-187; 58; 60; 66; 73; 74-1 76(a)-(c), (f), (h)-(n), and (s); and 77(c).

The following exceptions are denied because the proposed findings referenced in them are unnecessary: 55, as to proposed finding 160; 57; 59, as to the second sentence of proposed finding 58; 62: 63; 69: 70; 71; 72; 76(r); 76(t); and 77(a), (b) and (e). Exceptions 55, as to proposed findings 167 and 169; 56, as to proposed finding 188; and 67 are denied because the proposed findings are irrelevant. Exception 52, as to proposed findings 96, 97, and 99 is rejected because the proposed findings are not supported by competent, substantial evidence.

Exceptions 68; 76(d), (e), (g), (o), (p); and 77(f) and (g) are denied because our resolution of the City's other exceptions makes the resolution of these exceptions unnecessary.

The City asserts in exception 50 that the hearing officer erred in rejecting its proposed findings 43 through 56. Proposed findings 43 through 47, which concern comments Dinkins made to Carson about supporting Michael Dukakis for President, were rejected because the hearing officer determined that the statements were made at the second bargaining session, rather than the first bargaining session as proposed by the City. There is competent, substantial evidence to support the hearing officer's finding. Therefore, the exception is denied for proposed findings 43 through 47. Nevertheless, other than determining that the comments occurred at the first negotiation session, the hearing officer has adopted the substance of the City's proposed findings. Similarly, although the hearing officer rejected proposed findings 48 through 56, the substance of these proposed findings is included in findings 13 and 14, as modified by the Commission. Any portion of the proposed findings that is not included in the hearing officer's findings we deem unnecessary.

In exception 52 the City asserts that the hearing officer erroneously rejected proposed findings 84 and 92. Proposed finding 84 was properly rejected by the hearing officer as argument. However, we disagree with the hearing officer's rejection of proposed finding 92 and modify finding 26 to state: If an employee organization wanted to speak with Atalla or the Mayor, Atalla would contact Carson to determine if the subject was something that should be discussed at the bargaining table. If Carson determined that it was a bargainable subject, Atalla would inform the employee organization that it had to be negotiated with Carson at the bargaining table and not discussed with the Mayor.

In exception 53, the City argues that the hearing officer improperly rejected proposed finding 103. The first sentence of the proposed finding was properly rejected by the hearing officer as a conclusion. The substance of the final two sentences was incorporated by the hearing officer in finding 32. Therefore, the exception is granted in part and denied in part.

The City's exception 61 concerns the hearing officer's rejection of proposed finding 63 which relates to the parties' discussion of leave plans. There is competent, substantial evidence to support the City's proposed finding. Therefore, finding 17 is modified to include the following statement: In response to Carson's question about the leave plan, Dinkins stated that he did not want to discuss it. There was no further discussion on the leave plan.

The City's exception 64 contends that the hearing officer erroneously rejected proposed finding 120. A review of the record reveals that, except for the last sentence of proposed finding 120, the hearing officer has adopted it in finding 37. The final sentence is irrelevant. Therefore, except for the final sentence of 120, exception 64 is granted. The City's exception 65 is denied because the hearing officer concluded, based on his determination of the witnesses' credibility, that there was no evidence to support the City's proposed finding that Bo Meadows was the fire fighter who indicated to Councilwoman Tillie Fowler that the fire fighters would work to defeat her in the next election. Because the hearing officer's credibility determination is supported by competent, substantial evidence, it cannot be overturned. See City of Umatilla v. PERC, 422 So.2d 905 (Fla. 5th DCA 1982), cert. denied, 430 So.2d 452 (Fla. 1983). Thus, exception 65 is denied.

Exception 75 is denied to the extent it indicates the record supports a finding that the City Council authorized the Finance Committee to conduct a public hearing pursuant to Jacksonville City Council Rule 4.1304(b). The exception is granted in part, because there is competent, substantial evidence to support the second sentence of proposed finding 76 that the public hearing was scheduled for October 11.

Exception 76(q) is denied because the first sentence of proposed finding 126 is argument. Exception 77(d) is denied because proposed findings 144, 145, and 146 are recitations of testimony and not statements of fact.

Analysis

The first issue to be resolved is the City's claim that Local 122 and Dinkins admitted the material facts of the City's charge by filing their answer three days late. Florida Administrative Code Rule 38D-21.005(4) provides that a failure to timely file an answer "shall be deemed to constitute an admission of the material facts alleged in the charge." Notwithstanding this rule, we do not favor default judgments because of our desire to have cases decided on the merits. See FOP, Lodge 107 v. City of Atlantic Beach, 10 FPER & 15033 (1984). Nevertheless, if a party can demonstrate that it was prejudiced by the opposing party's late filing, a continuance or default judgment may be appropriate. The City, however, has not demonstrated that it was prejudiced in its preparation for hearing by Local 122's untimely answer. In fact, the City opposed a continuance requested by Local 122. Therefore, we deny the City's request to deem admitted the material facts alleged in its charge.

We will next, examine the alleged unlawful conduct charged against the City. Local 122 first contends that the City engaged in improper conduct when Carson met with the Finance Committee on September 27 to discuss the status of negotiations of all the City's bargaining units. The evidence reveals that Carson's discussion concerning the fire fighter bargaining unit was limited to informing the committee of the declaration of impasse, the issue at impasse, and the need for the committee to schedule an impasse hearing. We conclude that this conduct is not improper,

It is apparent that Carson's discussion with the Finance Committee occurred during the insulated period, that is, after the parties waived the special master process, and prior to the resolution of the impasse by the legislative body. Moreover, representatives from Local 122 were not present during the meeting to advocate Local 122's position. However, Carson's conduct is not unlawful because he did not discuss the merits of the City's impasse position with the council members. In other words, although Carson may have communicated with council members, the communications were not improper. We recognize that the chief negotiator must have the ability to inform the legislative body that the parties have reached impasse, identify the issue at impasse, and advise that an impasse hearing must be scheduled.

The second violation alleged by Local 122 concerns members of the City Administration meeting with members of the City Council immediately following the Finance Committee meeting on October 11, but prior to the council meeting. The most notable of these visits involved James Linn, B.J. Laster, Ronald Gill, and Councilman Matthew Carlucci in Carlucci's office. At this meeting, Linn summarized and explained the City's prehearing statement containing its position on the impasse issue, and offered to answer any questions.

Linn's discussion with Carlucci occurred prior to the conclusion of the council meeting. Thus, it was within the insulated period. Additionally, this private discussion concerned the merits of the City's impasse position and occurred in Carlucci's office without any of Local 122's representatives being present. We conclude that this conduct is unlawful.

The evidence also demonstrates that Finance Director Bernie Shainbrown met privately with Councilman Joe Forshee prior to the council meeting and requested that he vote for the City's impasse position. This conduct is also unlawful. However, Laster's comments to council members Denise Lee and Clarence Suggs to the effect that the council meeting would be difficult do not constitute violations because these comments did not concern the merits of the City's impasse position.

We must now consider the City's allegations. The evidence reveals that Dinkins and other representatives of Local 122 met with council members Suggs and Forshee in the council chambers immediately following the Finance Committee meeting and tried to convince them to vote in favor of Local 122's impasse position. Carson, who was still in the council chambers following the Finance Committee meeting, overheard these conversations.

It is apparent that representatives of Local 122 communicated with members of the City Council's Finance Committee during the insulated period concerning the recommendation for resolution of the impasse. However, we determine that this conduct is not unlawful because Local 122's representatives did not attempt to meet surreptitiously with the council members to discuss the merits of Local 122's position. Instead, their communication was conducted immediately following the committee vote, in the council chambers, openly and in the presence of Carson. Carson was aware of the substance of the conversations. Thus, the conduct did not give the appearance of impropriety. Therefore, we conclude that Local 122 did not violate ' 447.501 (1) (a) and (c).

We next consider the City's charge that Dinkins' and Local 122's course of conduct throughout the collective bargaining process constituted a refusal to bargain in good faith. The Commission has consistently held that it will examine a charged party's total conduct during negotiations to determine whether the party has refused to bargain in good faith. Professional Fire Fighters of Orlando, IAFF, Local 1365 v. City of Orlando, 13 FPER & 18218 (1987); Duval Teachers United, FEA/AFT, AFL-CIO v. Duval County School Board, 3 FPER 96 (1977) (DTU); Escambia Education Association and Escambia County School Board, 2 FPER 93 (1976), aff'd, 350 So.2d 819 (Fla. 1st DCA 1977). It is imperative that parties to negotiations approach the bargaining table with an "open mind and a sincere desire" to reach an agreement. ' 447.203(17), Fla. Stat. (1987). The City contends that Local 122 and Dinkins did not have this commitment to good faith bargaining.

The City relies on many of the factors set forth in the Commission's decision in DTU to support its claim that local 122 bargained in bad faith. In DTU, the Commission determined that the School Board's failure to bargain in good faith was evidenced by its (1) refusal to discuss mandatory subjects of bargaining, (2) hostile attitude toward the DTU and its chief negotiator, (3) hyper technical approach to establishing agendas and meetings, and (4) release of information to third parties rather than the DTU.

Here, the City first argues that Local 122's refusal to bargain over any subjects other than wages and the EAP is identical to the School Board's unlawful refusal to discuss mandatory subjects of bargaining, because this conduct evinces that Local 122 approached the bargaining table with a fixed and preconceived determination as to which issues it would discuss. We reject the City's comparison. The parties' collective bargaining agreement expressly provided in the reopener article that only wages and mutually agreed upon articles were subject to renegotiation. Thus, Local 122's refusal to discuss subjects it was not contractually obligated to negotiate is hardly comparable to the School Board's expressed refusal to discuss mandatory subjects of bargaining. Therefore, this factor does not support the City's contention that Local 122 or Dinkins engaged in bad faith bargaining.

The City next contends that Dinkins' hostile attitude and conduct toward the City and Carson demonstrate that Local 122 and Dinkins were not bargaining in good faith. We agree with the City that the record evidence amply demonstrates that Dinkins engaged in petty name-calling, and his conduct was less than commendable. Dinkins abrasive manner and his frequent episodes of anger at the bargaining table were unfortunate. Nevertheless, although this conduct may be indicative of bad faith bargaining, it is not sufficient, when viewed in the totality of the circumstances of this case, to conclude that Dinkins bargaining in bad faith. See Duval County School Board; v. PERC, 363 So.2d 30 (Fla. 1st DCA 1978).

Similarly, the statements uttered by Dinkins and other Local 122 representatives, or included in newsletters and newspaper articles, viewed objectively, did not constitute meaningful interference with Carson's ability to perform his duties, or undermine his relationship with the City Council. Moreover, ' 447.501(3) provides that the "parties' rights of free speech shall not be infringed... if such expression contains no promise of benefits or threat of reprisal or force." In United Faculty of Palm Beach Junior College v. District Board of Trustees of Palm Beach Junior College., 11 FPER & 16101 (1985), the Commission interpreted this statutory provision and concluded that language uttered in a labor context which is ... "intemperate, abusive or insulting' loses its protection only if it is likely to cause disruption in the workplace." 11 FPER at 325. Although some of the statements by Dinkins and other Local 122 representatives could certainly be characterized as intemperate or insulting, they posed no threat to the workplace. In the statements indicated Local 122's dissatisfaction with the City's bargaining position and its belief that the City was refusing to negotiate fairly. This is not unlawful. See Duval County School Board, supra. We therefore conclude that this conduct does not constitute bad faith bargaining.

The City claims that Dinkins' attempts at negotiating with individuals other than Carson is evidence of bad faith bargaining. There is no evidence that Local 122 or Dinkins ever discussed negotiable subjects with individuals who were not on the City's bargaining team. Although Dinkins twice requested during negotiations that he be allowed to speak with someone besides Carson, there is no evidence that Dinkins ever refused or threatened to refused to bargain with Carson over wages or the EAP. See City of West Palm Beach v. Palm Beach County Police Benevolent Association, 6 FPER & 11298 (1980). Similarly, the facts in this case demonstrate that prior to the 1988 negotiations it was common practice for employee organization representatives to bargain directly with the Mayor or his chief aide. Carson, however, tried to change this practice once he became chief negotiator. While Dinkins occasionally requested a meeting with the Mayor, the evidence also reveals that Atalla initiated a meeting with Dinkins on the day of the impasse hearing in hopes of settling the dispute. Thus, we conclude Dinkins' efforts to meet with the Mayor or his chief aide did not constitute bad faith bargaining in this case.

We also disagree with the City's claim that Dinkins' and Local 122's conduct or comments addressed to the Mayor were improper or evidence of bad faith bargaining. As previously noted, ' 447.501(3) protects a party's right of free speech. Local 122 and Dinkins had the right to express their opinion that negotiations were progressing poorly and the City's bargaining position was incorrect. Therefore, this conduct is not indicative of bad faith bargaining. See West Palm Beach, supra.

Additionally, Local 122's failure to submit for ratification the City Council's action on wages is not indicative of bad faith bargaining. Although the First District Court of Appeal held in City of Hollywood v. Hollywood Municipal Employees, AFSCME Local 2432, 468 So.2d 1036 (Fla. 1st DCA 1985), rev=g, 9 FPER & 14277 (1983), that an employee organization's failure to submit a contract to the bargaining unit for ratification is an unfair labor practice, we do not believe that the court intended to require an employee organization to submit an admittedly erroneous wage proposal to the bargaining unit for ratification. We adopt the hearing officer's conclusion that Local 122 did not have to submit the erroneous wage proposal for ratification.

Upon consideration, we conclude that Local 122 and Dinkins approached negotiations with an open mind and an interest in reaching an agreement. Our examination of the course of conduct by Local 122 and Dinkins does not reveal that they were bargaining in bad faith. Therefore, Local 122 and Dinkins did not violate ' 447.501(l)(a) and (c).

Attorney's fees

We affirm the hearing officer's determination that the City is not entitled to an award of attorney's fees and costs of litigation because it is not a prevailing party in either its charge or Local 122's charge. To the contrary, Local 122 is the prevailing party in its charge against the City, and Local 122 and Dinkins are the prevailing parties in the City's charge.

The hearing officer correctly stated that a prevailing charging party is entitled to attorney's fees if the respondent knew or should have known that its conduct was violative of ' 447.501. See IBEW, Local Union 2358 v. Jacksonville Electric Authority, 14 FPER & 19196 (1988). Here, the City argues that the hearing officer erred in recommending an award of fees to Local 122 because, as noted by the General Counsel in his notice of sufficiency, Local 122's charge involved an issue not previously decided by the Commission.

We agree with the City that Local 122 should not receive an award of fees. In this case we address the novel issue of whether an insulated period should apply in the instance when the special master process has been waived by the parties. Since the Commission has not previously provided direction on this issue, we cannot conclude that the City knew or should have known that its conduct was unlawful. Therefore, an award of attorney's fees and costs of litigation to Local 122 as the prevailing charging party is not appropriate. Finally, we agree with the hearing officer's determination that an award of fees to Local 122 and Dinkins as the prevailing respondents in the City's charge is not appropriate.

Remedy

As part of his remedy, the hearing officer recommended that the City be required to rescind that portion of the City Council's action which adopted the City's recommendation concerning the wage increase. However, both parties have indicated to the Commission that their resolution of the collective bargaining agreement makes this issue moot. Accordingly, we will not address this issue or order recision as part of our remedy.

Based upon the foregoing, the Commission makes the following conclusions of law:

1. The Commission has jurisdiction of the instant unfair labor practice charge.

2. The City of Jacksonville is a public employer within