THE FLORIDA EDUCATIONAL
NEGOTIATORS

 Volume VI……………….Winter 2005

In the District Court of Appeal of the State of Florida
Fourth District
Case No. 4D03-3829

Communications Workers of America and Local 3180 CWA,
            Appellants.

v.

Indian River County School Board
            Appellee.

The original report on this case was in November 2003 which may be reviewed on this website.

Polen, J.

Appellant, Communications Workers of America, has timely appealed the trial court’s order vacating an arbitration award, which interpreted section 447.4095, Florida Statutes, in its favor, on the basis that the arbitrator exceeded his powers under section 682.13 (1), Florida Statutes.             

The need for arbitration came about from a dispute regarding health care benefits provided to employees of the Indian River County School Board (School Board).  There are about 600 blue and white collar non-instructional employees who are members of the Communications Workers of America (the Union).  The teachers union was faced with the same issue, but resolved its differences with the School Board, so it was not a party of the appeal.  The School Board had implemented changes to the health care benefit plan pursuant to the provisions of Section 447.4095, Florida Statutes, as a result of financial urgency.  The arbitrator found in favor of the CWA saying the School Board had violated the statutes by imposing a unilateral change without a special master decision.  The School Board appealed the finding to the Circuit Court contending it had properly implemented the changes and that the arbitrator had made a decision beyond his scope of responsibility.  The Court granted a motion to vacate the arbitration award.           

 The unilateral modification was pursuant to statutory law and not a breach of the bargaining agreement.  Therefore, the arbitrator was pre-empted by PERC, which has exclusive jurisdiction over matters arguably covered under chapter 447.  As such, the trial court was correct in vacating the arbitration award.  The Union may not bypass the jurisdiction of PERC by proceeding directly to arbitration.

            AFFIRMED

May, J., and Gold, Marc H., Associate Judges, concur.
Not final until disposition of any timely filed motion for rehearing.

Arbitration Between:

School Board of Palm Beach County,
            (Employer)

and

Palm Beach County CTA
            (Association)
Grievant:  Donald R. Persson
AAA Case No. 32-390-00611-03

Issues:
            1.     Whether the annual evaluations dated May 21, 2003 followed the proper procedure(s) as described in the Collective Bargaining Agreement in Article II, Section (G) between the parties.

            2.     Whether the transfer of the grievant from a 250 day position to a 196 day position violated Article IV of the Collective Bargaining Agreement.

Mr. Persson’s 2002-2003 evaluation contained two areas of concern to which he alleged he had not received prior documentation or notice.  He wanted the evaluation reissued with no areas of concern.  Also, his position was that he had been unjustly demoted and denied due process when he was transferred to a 196 day position.  He contended he should have been treated as a Unit Adjustment Transfer (UAT) rather than an involuntary transfer.

It was concluded by the arbitrator that the evaluation was properly prepared in compliance with contractual procedures of Article II, Section (G).  As to the second issue, the grievant contended the school district failed to provide adequate protection from the Department of Juvenile Justice contractor.  A condition for remaining at the DJJ facility required security clearance.  He lost his security clearance which was the reason for the transfer.  The contractual language relative to the UAT procedure did not apply since there had not been a loss of the teacher unit, thus the involuntary procedure language was applicable.  The proper language of the Collective Bargaining Agreement was applied to him based upon the evidence and testimony provided.

Award: 
            The grievances were without merit and were denied.

Arbitrator:  William J. McGinnis, Jr.                            July 9, 2004

Arbitration Between:

School Board of Alachua County, FL
            (Employer)

and

Erma Sams
            (Employee)
AAA Case No. 33-390-00401-03

Issue:

1.     Whether a hearing was appropriate regarding the termination of Ms. Sams from her employment, since Ms. Sams and/or her Association failed to submit a written request for discussion in a “timely fashion” as outlined in the Collective Bargaining Agreement.  

  The Collective Bargaining Agreement states in part:

In the event an employee believes there is a basis for a grievance, the individual will first discuss the grievance with the worksite supervisor.  No grievance will be processed until such informal discussion has been held.  The employee will initiate the discussion by filing a written request with the worksite supervisor within five (5) days after the grievant knew or should have known, of an occurrence leading to the possible grievance…

In a conference call, the arbitrator reminded Ms. Sams that unless the matter of timeliness was settled, he would not listen to arguments surrounding the merits of the case.  The arbitrator was sympathetic to the plight of Ms. Sams.  The arbitrator felt bound by the four corners of the Collective Bargaining Agreement. 

The language clearly states:

An arbitrator will limit his discussion to the terms of this agreement and will not have the power to add to, subtract from, modify, or alter such terms either directly or by implication.

Award:
            The request for Arbitration was denied due to failure on the part of Ms. Sams and/or her Association to submit this request in a timely fashion.

Arbitrator:  John C. McCollister                              January 17, 2004

Arbitration Between:

School Board of Lee County, FL
            (District)

and

Teachers Association of Lee County
            (Association)
Grievant:  Timothy Kenny
AAA Case No. 32-390-00561-03

Issues:
            1.     Whether there was just cause for a letter of warning.

            2.     Whether the grievant was denied due process.

In June 2003, the District issued the Grievant a written reprimand for “inappropriate interactions with students which made them feel uncomfortable.”  Also, the letter apprised him that he would be transferred to another school for the 2003-2004 school year, and would be required to attend the sexual harassment portion of employee orientation.  The charges were also reported to the Bureau of Professional Standards.

As a result of a Level II grievance hearing, the District changed the written reprimand to a written warning, rescinded the requirement to attend sexual harassment orientation, and made the transfer voluntary.  On September 11, 2003, the Association filed a Demand for Arbitration charging that the Grievant had received discipline without just cause, and sought rescission of the disciplinary reprimand.  The assertion was that there was no difference between a written reprimand and a written warning.

The Association charged that the District failed to apprise the Grievant of the charges against him in a timely fashion.  In this case the Grievant was not formally apprised of the charges until after the principal has filed sexual harassment allegations with the District Office.  The District found that there was insufficient evidence for the charge of sexual harassment.  The Grievant was disciplined for acting inappropriately with the student.  He was given a written reprimand which was later changed to a written warning for “inappropriate interactions with students which made them feel uncomfortable.”  The Arbitrator found that the District had sustained its burden of proof in showing that the conduct of the Grievant was “inappropriate.”

The due process argument advanced by the Association was an affirmative defense for which it bore the burden of proof.  The Arbitrator found that the Association did not sustain that burden of proof.  Also, the Arbitrator found that the Grievant was given timely notice and a reasonable opportunity to present evidence on his behalf at the June 2003 predetermination conference.  In that the Grievant was not apprised of the allegations at the time they were referred for investigation did not constitute a denial of due process.  The Arbitrator found that there was just cause for the letter of warning and that due process had not been denied.  The letter of warning charged the Grievant with “inappropriate interactions with students which made them feel uncomfortable.”  The District proved such interactions with a single student.

Award:
           The grievance was sustained only in that the Grievant was shown to have engaged in inappropriate conduct with one student.  At the option and request of the Grievant, the letter of warning should be amended to state that the Grievant had engaged in “inappropriate interactions with a student which made that student feel uncomfortable.”  The Grievant’s and the Association’s requests for attorneys fees and expenses were denied.

Arbitrator:  Mark I. Lurie                            February 1, 2004