THE FLORIDA EDUCATIONAL
NEGOTIATORS

 Volume VII…………….Spring 2005

The following material, reprinted with permission, is from the October 28, 2004 issue of NSBA Legal Clips, a weekly e-newsletter of the National School Boards Association; free subscriptions available at www.nsba.org/legalclips.

Offering early retirement?
Be careful

In October 2004, the Equal Employment Opportunity Commission (EEOC) filed 10 lawsuits against Minnesota school districts alleging that they violated the federal Age Discrimination in Employment Act (ADEA) by offering early retirement incentive plans that pay out decreasing sums of cash as employees retire at older ages.

The lawsuits came as a surprise to the districts, which relied on EEOC’s past representations that it would not pursue such claims.  In 2000, EEOC had contacted school districts in Minnesota and Wisconsin and questioned the legality of various types of early retirement incentive plans, including plans that offer cash benefits that are reduced with age and plans that offer health benefits that are reduced or eliminated as retirees become eligible for Medicare.

EEOC decided not to pursue litigation and instead to review its policy on the issue.  In April 2004, it announced a final rule, stating that employers may offer the retirement health plans; however, this final rule has not yet been officially published in the Federal Register.

EEOC did not change its position that retirement incentives with reducing cash benefits violate the ADEA, but the agency informed school districts that it would stop pursuing charges on these plans as long as the districts modified their collective bargaining agreements to comply with this interpretation going forward.

Now, regardless of whether the districts changed their bargaining agreements accordingly, EEOC is suing those that previously offered reducing cash incentives in their 1998-2001 agreements.

Six of the districts being sued are represented by Shamus P. O’Meara of Johnson & Condon PA in Minneapolis, who is general counsel to the Minnesota School Boards Association Insurance Trust.  O’Meara reports that EEOC has ignored the districts’ request to meet with the agency and has indicated that its bottom-line settlement offer is that every district must enter into a consent decree for “appropriate injunctive relief” and payment to every claimant of the amount that would have been paid but for the age penalty, plus interest.

The districts have asked EEOC to provide details about the sums and injunctive relief it seeks.

UC-2004-019; Order No. 05E-046, March 2, 2005

School District of Dixie County
            Petitioner

v.

Dixie County Education Association
            Respondent

On November 15, 2004, the School District of Dixie County (School District) filed a unit clarification petition seeking to clarify the bargaining unit of non-certificated employees represented by the Dixie County Education Association (Association).  The School District desired to exclude the classifications of food service site manager, transportation coordinator, and management information specialist from the bargaining unit.  Also, the School District wanted to add the positions of warehouse foreman and school confidential secretary to the unit.

The Association opposed the petition in part objecting to the exclusion of the food service site manager and transportation coordinator from the unit because their duties had not changed and that the management information specialist was not involved with confidential data concerning collective bargaining negotiations.  The Association agreed with the School District regarding the other two positions.

The School District indicated that it would not be calling witnesses at the scheduled hearing and that job descriptions would be submitted with the clarification petition as its sole evidence.  Therefore, the hearing was cancelled.  The burden was on the School District to prove that the unit clarification petition was warranted.  The job descriptions were considered hearsay and were not self-authenticating.  The petition was denied and dismissed by the hearing officer.

Upon review of the petition, the Commission also dismissed the petition.

CA-2005-019; Order No. 05GC-067, April 5, 2005

Sandra Cullaro
             Charging Party

v.

School District of Hillsborough County
             Respondent       

On March 28, 2005, Sandra Cullaro filed an unfair labor practice charge against the School District of Hillsborough County (School District), alleging violations of Section 447.501(1)(a), (d) and (f), Florida Statutes, (2004).  Cullaro asserted that her right to a fair grievance procedure had been abridged by the School District’s refusal to process a grievance filed in January 2005, regarding a reduction in pay.  Cullaro is not a union member so she filed both a union contract and a general employee grievance alleging violations of both the School District’s policies and articles of the collective bargaining contract. 

Section 447.501(1)(f), Florida Statutes, prohibits a public employer from refusing to discuss a grievance “in good faith pursuant to the terms of the collective bargaining agreement with either the certified bargaining agent for the public employee or the employee involved.”  The charge requires that the charging party establish that:

(1) the grievance at issue arguably involves the interpretation or application of a collective bargaining contract; and (2) the manner in which the employer handled the grievance, usually at the arbitral step, prohibited the employee from fully utilizing the contractual grievance procedure.  Consequently, in order to establish these conditions, the charge must be accompanied by the grievance and a copy of the agreement under which it was filed.

The Commission lacks jurisdiction to enforce the School District’s internal grievance procedure. If that procedure was violated, the resolution lies with the Superintendent or School Board.  If there was a bargaining agreement issue, she had to exhaust the steps of the contractual grievance procedure before filing an unfair labor practice charge.

The charge was summarily dismissed by the General Counsel with the right to appeal to the Commission.

CA-2004-154 and CA-2004-158; Order No. 05U-070, April 6, 2005

Andrea J.B. Cagle
            Charging Party

v.

St. Johns County School District
            Respondent

On October 12, 2004, Andrea J.B. Cagle filed a pre-hearing statement in her veteran’s preference complaint against the St. John’s County School District (School District), which was pending before the hearing officer in Case No. VP-2004-020.  In that pre-hearing statement, Cagle alleged, in part, that the School District had discriminated against her because she had previously filed a charge against the School District and given testimony against the School District.  On October 13, the hearing officer in that veteran’s preference case issued an order stating that Cagle’s statements of retaliation allege an unfair labor practice charge, and transferred a copy of Cagle’s pre-hearing statement to the Clerk of the Commission for docketing and processing as an unfair labor practice charge.  On October 19 Cagle filed the unfair labor practice charge.  That charge was not accompanied by supporting documents.

On October 29, the General Counsel summarily dismissed both charges because they failed to provide a factual basis demonstrating that Cagle’s protected activity, the filing of a veteran’s preference complaint with the Commission in 2001 and her testimony at a Commission hearing in 2002, were substantial or motivating factors in the alleged retaliation by the School District.  Cagle was provided with leave to file an amended charge or to appeal to the Commission.  On November 18 Cagle appealed to the Commission.

A 146 page composite document, as well as other documents, accompanied her appeal.  Because the appeal alleged new facts and contained supporting documents that had not been previously considered by the General Counsel, it was remanded as an amended charge for the General Counsel to determine if it established a prima facie violation of law.  On December 13 the amended charge was summarily dismissed.  Among other reasons, the General Counsel found that there was no objective evidence linking Cagle’s protected activity to the School District’s actions.  On January 3, 2005 Cagle appealed to the Commission alleging ten points of law or fact that she claimed were sufficient to establish a prima facie violation of Section 447.501(1)(d), Florida Statutes.

In her appeal Cagle alleged that she was placed on administrative leave pending an investigation based on six allegations of classroom related misconduct and subsequently non-renewed.  The Commission found that there was no evidence linking the paid administrative leave to her prior protected, concerted activity.  Cagle did not demonstrate that her prior protected, concerted activity was substantial or motivating factor in either the School District’s decision to place her on paid administrative leave or to not renew her annual contract.

The amended unfair labor practice charge was dismissed by the Commission.  The order may be appealed to the appropriate district court of appeal.

EL-2004-008; Order No. 04E-033, February 2, 2004
(Relates to RC-2003-085 and OR-86-010)

Florida Public Employees Council 79, American Federation of
State, County and Municipal Employees, AFL-CIO
            Petitioner

v.

City of Jacksonville
            Respondent

v.

Professional Association of City Employees, Inc.
            Intervenor

v.

Jacksonville City Employees Union
            Intervenor

This is a case you may wish to review.  It relates to the filing of PERC Form 2 by the union.  Specifically, line five calls for the total receipts received by the union over the last fiscal year.  It appears that in some cases, unions are not reporting all monies received.  If you would like a copy of this order, please contact the Florida School Labor Relations Service.