Osceola Classroom Teachers Association

V.

School Board of Osceola County

Case No. BH-CA-764-1002, 78U-038, February 2, 1978

Before Carson, Chairman; Parker Commissioner; Lang, Assoc. Commissioner

Unfair Practices - Unilateral Action - 540.40

Commission refuses to consider unilateral action charges involving Adult Education Teachers made by union against school board since these employees are not "regularly employed certificated classroom teachers".

Personnel - 435.65

Adult education teachers are not regularly employed certificated classroom teachers since (1) they have no written contract with the School Board, (2) their employment is dependent upon enrollment in the classes they are scheduled to teach, (3) their classes may be discontinued and their employment terminated if the enrollment is not sufficient, and (4) they are paid on an hourly rate for hours worked.

Unfair Practices - Unilateral Action - 505.20, 540.40

School Board committed an unfair labor practice when it unilaterally eliminated the supplements for middle school band and intramural directors while negotiation over wages were in progress without giving the union an opportunity to bargain over the elimination since elimination of the supplement affects the wages, hours and terms and conditions of employment of members of the bargaining unit.

Scope of Bargaining - Management Rights - 515.10

In the absence of a contrary contractual provision, at any time a public employer may unilaterally exercise those management rights enumerated in Section 447.209, Fla. Statutes. Where the public employer is a school board, it may decide unilaterally to discontinue an academic or extra-curricular program and to terminate or lay-off an employee due to lack of work. It, however, is not relieved of its obligations to notify the union of proposed actions affecting bargaining unit members and to thereby provide the union an opportunity to bargain over the effect of the action on the unit members.

Unfair Practices - Refusal to Bargain - Unilateral Alteration of Terms and Conditions of Employment - 520.15, 540.10, 540.20, 607.80

School Board did not commit an unfair labor practice when it froze salaries at their rate at contract expiration and eliminated day-teacher experience increments since employer has a duty to maintain the status quo with regard to an expired agreement until the legislative body takes action pursuant to Section 447.403(2)(c)4, Florida Statutes or a new agreement is ratified.

Unfair Practices - Duty to Bargain - 515.10, 540.20

School Board committed an unfair practice when it refused to discuss union's proposals regarding wages for extra duties performed. Public employers are not relieved of their obligation to bargain on the bare assertion that proposals presented by the employee organization involve management rights. Such refusal constitutes a violation of Section 447.5O1(l)(a) and (c), Florida Statutes.

Unfair Practices - Impasse - 540.30, 607.50

School Board committed an unfair labor practice in violation of Section 447.501(1)(a) and (c), Florida Statutes by submitting a salary proposal to the Special Master that was less than that offered to the union at the parties' last negotiating session before reaching impasse. Special Masters are not appointed for the purpose of hearing, de novo, collective bargaining agreement proposals. Rather, they are appointed to recommend a resolution of proposals on which the parties cannot reach agreement following a reasonable period of negotiation.

Good Faith Bargaining - 540.01

School Board's rejection of the Special Master's recommendation which is similar to one submitted by that party during negotiations, in the absence of a showing of arbitrary rejection, is not a failure to bargain in good faith since conditions may change between the time a proposal is made in negotiations and a Special Master issues his recommended decision.

Unfair Practices - Refusal to Bargain - 540.01, 607.703

School Board committed an unfair labor practice in violation of Section 447.501(1)(a) and (c) Florida Statutes by refusing to discuss the twenty recommendations of the Special Master with which it did not agree. Parties have a statutory obligation to discuss the Special Master's recommended decision and continue negotiations on those provisions on which they did not agree.

Unfair Practices - Unilateral Action - 540.40

School Board committed an unfair labor practice in violation of Section 447.5O1(1)(a) and (c) Florida Statutes when it unilaterally awarded teaching supplements to certain coaches since this action was taken after ratification of a contract with the employee organization. A public employer who is bargaining with an employee organization may take unilateral action with respect to wages and other terms and conditions of employment only at the end of the impasse procedure when it acts as a legislative body.

Unfair Practices - Soliciting Information from Employees - 910.103

School Board was not guilty of soliciting information and assistance concerning teaching supplements directly from the unit members without dealing by and through the union.

Unfair Practices - Threat to Undermine Union - 910.1055

Union's allegation that School Board attempted to undermine Union as exclusive bargaining agent for the employees in the unit by threatening loss of existing benefits of unit members unless agreement was made on a new collective bargaining package is unsupported and therefore no unfair labor practice is found.

Ron Meyer, of Meyer and Andrews, P.A., Tampa, attorney for charging party.

Norman J. Smith, of Brinson and Smith, P.A., Kissimmee, attorney for respondent.

ORDER

PARKER, Commissioner: Upon charges filed by the Osceola Classroom Teachers Association (Charging Party or OCTA), the General Counsel of the Public Employees Relations Commission (Commission) issued a complaint and notice of hearing in the above-captioned case against the School Board of Osceola County (Respondent or School Board). Copies of the charge and complaint and notice of hearing were duly served upon Respondent and Charging Party.⁽¹⁾

The charges allege that: (1) on or about November 4, 1975, the School Board unilaterally rejected the findings and recommendations of the Special Master appointed pursuant to Section 447.403, Florida Statutes; (2) subsequent to the above rejection, the School Board acted to accept only that portion of the Special Master's findings and recommendations favorable to the School Board and refused to reopen negotiations; (3) since on or about August 15, 1975, the School Board engaged in bad faith and regressive bargaining by refusing to negotiate certain terms and conditions of employment and by unilaterally adopting a schedule of salary supplements without having negotiated such supplements.

The complaint elaborated upon the charges filed by the OCTA and alleges that Respondent, through its agents, did refuse, and continues to refuse, to bargain collectively in good faith with the Charging Party; that Respondent engaged in a course of conduct indicating a refusal to bargain collectively in good faith; and that Respondent attempted to undermine OCTA as exclusive bargaining agent. Specifically, the complaint alleges that Respondent, through its agents:

(a) unilaterally modified or terminated experience increments for adult education teachers;

(b) unilaterally reduced the hourly wage paid to adult education teachers;

(c) unilaterally modified or terminated teaching supplements, including supplements for middle school band director and middle school intramural directors;

(d) unilaterally modified and terminated the day-teacher experience increments;

(e) failed and refused to discuss, as non-negotiable, proposals by the Charging Party regarding mandatory bargaining subjects, including wages for extra duties performed;

(f) presented the Special Master with proposals which were lower than proposals it had made to the Charging Party during negotiations;

(g) rejected a recommendation by the Special Master regarding the selection of summer school teachers which recommendation was substantially equivalent to a proposal made by Respondent during negotiations;

(h) following receipt of the Special Master's report, and continuing until the date of the legislative hearing, refused to bargain over all but six mandatory bargaining items in dispute;

(I) failed to comply with the requirements of Section 447-403⁽²⁾

in adopting procedures for the legislative hearing;

(j) unilaterally instituted charges in teaching supplements;

(k) solicited information and assistance concerning teaching supplements directly through unit members;

(l) made it known that adult education salary cuts were linked to collective bargaining negotiations in progress at that time;

(m) threatened loss of existing benefits of unit members absent agreement on a new collective bargaining package.

The complaint alleges that, by the acts described above, and by each of the said acts, Respondent did interfere with, restrain and coerce its employees in the exercise of their rights guaranteed by Section 447.301 and did thereby violate Section 447.501(1)(a). The complaint further alleges that, by the acts described above, Respondent did refuse to bargain collectively in good faith, in violation of Section 447.501(1)(c).

The case was heard on July 1 and 2, 1976,⁽³⁾

and the Hearing Officer's Recommended Order was issued on October 29, 1976. The School Board and the General Counsel filed exceptions to the recommended order and all parties filed briefs with the Commission. The case was orally argued before the prior part-time Commission on January 25, 1977. The Commission, however did not issue a final order, as defined in Section 120.59(1) and Section 447.503(4)(a). The present full-time Commission took effect in July, 1977, pursuant to Section 447.205, Florida Statutes (1975), as amended by Chapter 77-343, Section 7, Laws of Florida. Because the full-time Commission would issue the final order, the parties were given an opportunity to request, and did request, oral argument before the full-time Commission. Re-argument was heard on September 19, 1977.

The Commission has reviewed the entire record in this cause and finds there is competent substantial evidence to support the hearing officer's findings of fact except as specifically noted herein. Accordingly, except as specifically noted, they are adopted as the Commission's findings of fact. The Commission is substituting its own conclusions of law for those of the hearing officer pursuant to Section 120.57(l)(b) 9, Florida Statutes (1976 Supp.).

In the hearing officer's recommended order, he rephrased the allegations of the complaint contained in paragraphs 10 and 11 into "ISSUES" and made what he considered to be the pertinent findings of fact and conclusions of law after each issue. He did not present all of the issues in the sequence in which the corresponding allegations appeared in the complaint. The Commission in this Order will use the same format adopted by the hearing officer; however we will consider each alleged unfair labor practice in the order of presentation in the complaint.

During the course of the proceedings, the Respondent made the following motions: (1) a motion to dismiss paragraphs 10(A), (B), (D), (E), (F), (G), (H), (I) (K) and 11(A) and (B) of the complaint on the ground that the allegations contained therein are not founded on the charges and amended charges filed by OCTA; (2) a motion to dismiss paragraphs 10(A), (B) and 11(A) of the complaint on the ground that they involve employees who are not in the bargaining unit; (3) a motion for more definite statement of specified paragraphs of the complaint; and (4) a motion to revoke the subpoena summoning John Gholdston.

The hearing officer recommended the dismissal of paragraphs 10(K) and 11(A) and (B) of the complaint as being beyond the scope of the charges originally filed by the Charging Party. The Commission finds these allegations to be sufficiently related to the amended charge's contention that Respondent engaged in bad faith and regressive bargaining to withstand a motion to dismiss. See, Suwannee County Employees, AFSCME, AFL-CIO v. Suwannee County Board of County Commissioners, 4 FPER ¶40l0 (1977). The hearing officer found the remaining paragraphs of the complaint to be within the scope of the charges. The Commission concurs.

The second motion to dismiss sought the dismissal of paragraphs 10(A) and (B) and 11(A) on the grounds that they involve adult education teachers who are not in the bargaining unit represented by OCTA.

The hearing officer correctly ruled that it was impossible to determine whether they were in the unit without taking evidence as to their qualifications and the characteristics of their employment.

Prior to the hearing, the hearing officer denied in part and granted in part Respondent's motion for more definite statement of facts. After the hearing, the hearing officer denied the motion to revoke John Gholdston's subpoena. He ordered Gholdston to appear and give testimony in this case if called upon to do so by the Commission's General Counsel. There is nothing in the record to indicate he was asked to testify.

At the hearing, the attorney representing the General Counsel made a motion to delete paragraph 10(I) which alleged Respondent's legislative body hearing procedures did not comply with Section 447.403. The hearing officer granted the motion. No evidence was presented regarding this allegation and the hearing officer submitted no findings or conclusions as to paragraph 10(I).

Having considered the record, the Commission affirms the Hearing Officer's rulings on all motions with the exception of his dismissal of paragraphs 10(K) and 11(A) and (B) of the complaint.

Paragraphs 10(A) and (B) allege Respondent committed unfair labor practices by taking unilateral action with respect to experience increments and hourly wages of adult education teachers. The hearing officer dealt with both paragraphs in his Issue I.

He found that adult education teachers were not required to be certificated; persons in the adult education program included both certificated daytime teachers and administrative personnel. Their employment as adult education teachers was in addition to their regular employment. They worked as adult education teachers at night for a maximum of six hours per week. Their adult education employment was not contractual and could be terminated if a particular class were cancelled or dropped based upon a lack of student enrollment. Adult education teachers were compensated from a separate functional breakout within the school budget to which that portion of their compensation earned as an adult education teacher was charged. No deductions were made from the adult edu~ation portion of a teacher's salary for retirement or social security.

The Commission finds the following additional facts are relevant:

At the hearing the parties stipulated to the correctness of paragraph 6 of the Complaint as follows:

The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 447.307(4) of the Act:

Teachers who are regularly employed certificated personnel except those specifically excluded. Included are certificated classroom teachers, guidance counselors, librarians, school psychologists, vocational specialists and job entry coordinators, but excluded are superintendents, principals, deputy superintendents for instruction, director of administration, director of operations, director of curriculum and research director of vocational education and project planning, director of special education, director of personnel and community relations, audio-visual coordinator, coordinator of career education, coordinator of pupil personnel, reading coordinator, secondary supervising principals, elementary supervising principals, full-time assistant principals, part-time administrative assistants, director of finance, coordinator of business affairs, coordinator of school food services.⁽⁴⁾

The Commission finds that the above-described unit identifies those employees of Respondent represented by OCTA.

Not only are adult education teachers not required to be certificated, the School Board has hired adult education teachers who are not certificated. The definition of "administrative personnel" as used by the hearing officer in his finding that the adult education program included administrative personnel meant "a person who is a high school principal or higher in the organizational chart." Adult education teachers do not have a formal written contract with the School Board. They are paid on an hourly basis for hours worked. If a class is discontinued after it has begun, the teacher's job is terminated and he or she is paid for the hours worked up to termination.

Before considering the merits of the allegations contained in paragraphs 10(A) and (B) of the complaint, it is necessary to determine whether adult education teachers are included in the bargaining unit represented by the Charging Party. If they are not, these paragraphs must be dismissed.

The unit description does not refer to "adult education teachers" in either the list of persons included or the list of those excluded, even though those lists enumerate specific categories of personnel. The "included" list does refer to "teachers who are regularly employed" and "certificated classroom teachers." We therefore find that included in the unit are "regularly employed certificated classroom teachers." Other categories of personnel are also included, however a discussion of them is not material to the issue before the Commission.

The facts show that indicia of regular employment as a teacher are missing in the case of adult education teachers. They have no formal written contract with the School Board. Their employment is dependent upon enrollment in the classes they are scheduled to teach. Their classes may be discontinued and their employment terminated if the enrollment is not sufficient. They are paid on an hourly rate for hours worked.

In addition, there is no requirement that adult education teachers be certificated, and, in fact, some are not. Furthermore certain of the adult education teachers are administrative personnel.

Based upon the facts before it, the Commission concludes that the adult education teachers are not "regularly employed certificated classroom teachers" and, therefore, are not included in the bargaining unit represented by OCTA. The people serving as adult education teachers, of course, also may be included in the unit if, in addition to being adult education teachers, they are "regularly employed certificated classroom teachers."

The unfair labor practice charges contained in paragraphs 10(A) and (B) arise out of allegations that the School Board took unilateral action with respect to adult education teachers. When an employer and employee organization are engaged in collective bargaining negotiations, Chapter 447, Part II, (the Act) generally prohibits the employer from taking unilateral action with respect to the employees in the unit represented by the employee organization until the employer acts as the legislative body under Section 447.403(2)(c)4.⁽⁵⁾

Pinellas County Police Benevolent Association v. City of St. Petersburg, 3 FPER 205 (1977).

In this case, the adult education teachers were not included in the certified bargaining unit. The School Board, therefore, was not prohibited from taking unilateral action with respect to the adult education teachers. Having reached this conclusion, the Commission does not need to consider the merits of the unilateral action charges.

Paragraph 10(C) alleges Respondent, from September 30, 1975, until December 2, 1975, unilaterally altered teaching supplements for the middle school band director and middle school intramural directors. The hearing officer dealt with this allegation in his Issue III.

The hearing officer found that the positions of middle school band directors and directors of intramural athletics were eliminated by Respondent as part of a reorganization of the academic program of the middle schools. In his "Conclusions of Law" he made the further factual finding that, "No evidence was presented that the implementation or deletion of academic programs were an appropriate subject of collective bargaining either by custom or by agreement by the parties." In addition, in his "Conclusions of Law," he stated, "The evidence indicates that rather than eliminating a salary supplement, the function for which the supplement had previously been paid was eliminated."

The evidence does not support either statement. Consequently, for the reasons set forth below, the Commission specifically rejects these findings as not being supported by competent substantial evidence.

In order to resolve this issue, it is necessary to make the following additional findings of fact:

The School Board and the OCTA had a collective bargaining agreement covering the period from December 13, 1974 until June 30, 1975. Negotiations for a new agreement began in April, 1975. In the late spring of 1975 all middle school principals and some School Board administrators met to discuss the middle school band and intramural programs. They concluded that those programs were no longer necessary in light of the change from the junior high to middle school concept. This decision was not put in writing, and at least one middle school principal felt it was not mandatory that the middle school band program be discontinued. The 1974-1975 salary schedule provided for teacher supplements for middle school band directors and middle school intramural directors. On July 28 and August 21 the School Board presented OCTA with salary proposals for the 1975-1976 school year. The proposal did not provide for supplements for middle school band and intramural directors. The deletion of these supplements was not discussed with OCTA; the Superintendent of Schools felt "that inherent in the right to create, which I view is [sic] a managerial right, is a right to abolish positions." On September 8, 1975, a Special Master conducted a hearing and, on September 22 and 30, the School Board adopted a salary schedule for instructional personnel for the 1975-1976 school year which did not include supplements for middle school band and intramural directors.

The Commission finds the School Board committed an unfair labor practice when it unilaterally eliminated the supplements for middle school band and intramural directors without giving the OCTA an opportunity to bargain over the elimination.

As a general rule, while negotiations are in progress, a public employer may take unilateral action with respect to wages, hours, and other terms and conditions of employment only when it sits as a legislative body at the conclusion of the Section 447.403 impasse procedure. Pinellas County Police Benevolent Association V. City of St. Petersburg. supra. There is an exception, however; in the absence of a contrary contractual provision, at any time a public employer may unilaterally exercise those rights enumerated in Section 447.209.

Where, as here, the public employer is a school board, it may decide unilaterally to discontinue an academic or extracurricular program and to terminate or lay-off an employee due to lack of work. It, however, is not relieved of its obligations to notify the union of proposed actions affecting bargaining unit members and to thereby provide the union an opportunity to bargain over the effect of the action on the unit members. See, John Palowitch and Orange County Classroom Teachers Association V. Orange County School Board, 3 FPER 280 (1977).

In this case, the evidence is unclear whether the School Board actually made the decision to eliminate the director positions. The record reflects only that, in the opinion of Superintendent Sharpe, an agreement was reached between himself and the middle school principals in the spring of 1975 that the band program would be discontinued. At least one Principal, Jimmie Fletcher, failed to interpret the agreement reached as a mandate to eliminate the programs. The Superintendent did not issue a written directive embodying the agreement and there is no evidence that the School Board took any official action to eliminate the programs or the positions. Rather, the record merely reflects that neither the School Board's July 28 and August 21 salary proposals nor the unilaterally implemented 1975-1976 salary schedule of September 20 contained supplements for these positions.

In view of the above evidence, the Commission concludes that the hearing officer's finding that the positions for which the supplements were paid, rather than the supplements themselves, were eliminated is not supported by the record. The Charging Party presented sufficient evidence to establish a prima facie case of unilateral elimination of the supplements. In defense, the School Board asserted that the elimination was permissible since it resulted directly from the exercise of the inherent management right to abolish the positions for which the supplements were given. However, the School Board simply failed to demonstrate by a preponderance of credible evidence that the positions had in fact been eliminated. Because the School Board failed to rebut the prima facie case established by the Charging Party, the Commission concludes that the School Board violated Section 447.501(1)(a) and (c) by unilaterally eliminating the salary supplements of middle school band directors and intramural directors while negotiations over wages were in progress.

A similar conclusion is warranted even if it is assumed, arguendo, that the School Board did properly eliminate the disputed positions. While it is clear that the exercise of the management decision to eliminate the positions necessarily entails elimination of the wages paid for these positions, it is equally clear that the elimination of the supplement affects the wages, hours and terms and conditions of employment of members of the bargaining unit. Consequently, the School Board had a duty to notify the Charging Party of the impending elimination of the positions. The record is clear that no such notice was given in this case and the failure to do so constitutes a violation of Section 447.501(1)(a) and (c).

Paragraph 10(D) alleges Respondent from September 30, 1975 until December 2, 1975, unilaterally modified and terminated day-teacher experience increments. The hearing officer considered this allegation in his Issue X.

He found that experience increments were contained in the 1974-1975 contract. On September 5,1975⁽⁶⁾

Respondent submitted a salary proposal to the Special Master which did not provide for experience increments. The teachers' first pay day for the 1975-1976 school year was approximately September 19, 1975, before the Special Master's recommended decision was due. On September 16 the School Board adopted a salary schedule which did not provide for day-teacher experience increments.

The Commission finds that the School Board correctly froze salaries at their 1974-1975 rate. As the Commission held in City of St. Petersburg. supra, 3 FPER at 208: [U]pon the expiration of an agreement and until the legislative body takes action pursuant to Section 447.403(2)(c) 4, or a new agreement is ratified, the public employer has a duty to maintain the status quo with regard to the expired agreement. This "status quo" requires the employer to maintain the terms and conditions of the expired agreement in the same state that the terms existed on the expiration date of the agreement. To the extent of this "straight line" maintenance, the agreement remains alive in spite of its expiration date.

Under this rationale, a public employer is only under a duty to maintain the salary levels that existed at the agreement's expiration date. If the expired agreement provided for a step increase in salary for each employee on his anniversary date, the employer is not required to provide those steps which occur during the hiatus between the expired agreement and the Section 447.403 legislative action or the ratification of a new agreement. Those increases, during the hiatus, were beyond the contemplation of the public employer when it executed and ratified the agreement for a specific period of time.

The elimination of day-teacher experience increments, therefore, did not constitute an unfair labor practice.

Paragraph 10(E) alleges Respondent, on August 21, 1975, refused to discuss, as non-negotiable, proposals by the Charging Party regarding mandatory bargaining subjects, including wages for extra duties performed. The hearing officer considered this allegation in his Issue VII.

According to the hearing officer, the proposals referred to in this paragraph are contained in paragraphs H and I of page 1 of Charging Party's Exhibit 13.⁽⁷⁾

Respondent's reply to these proposals was that they were "management rights which were not for sale."

The Commission finds Respondent committed an unfair labor practice when it refused to discuss OCTA's proposals regarding wages for extra duties performed.

Public employers are not relieved of their obligation to bargain on the bare assertion that proposals presented by the employee organization involve management rights. Rather, employers must come into negotiations with open minds and must discuss the employee organizations' proposals. This is not to say that the employers may not ultimately reach the conclusion after discussion, that the proposals touch so closely to inherent management rights that no further bargaining is necessary. "However, these determinations cannot be made at the threshold of bargaining by the mere categorization of certain 'subjects' as 'non-negotiable', without further exploration into the impact and exact language of prospective proposals." Duval Teachers United V. Duval County School Board, 3 FPER 96, 100(1977).

By refusing to discuss OCTA's proposals contained in paragraphs H and I of page 1 of Joint Exhibit 13, Respondent refused to bargain collectively in violation of Section 447.501(1)(c). In addition Respondent's refusal interfered with and restrained its employees in the exercise of rights guaranteed them under the Act in violation of Section 447.501(l)(a).

Paragraph 10(F) alleges Respondent committed an unfair labor practice by submitting proposals to the Special Master that were less than the proposals made to the Charging Party during negotiations. The hearing officer dealt with this allegation in his Issue VIII.

The hearing officer found that "Respondent presented three separate package proposals to the OCTA." Two were submitted to OCTA, one on July 28, 1975 and the other on August 21, 1975. The third was submitted to the Special Master on September 5, 1975. He does not indicate the substance of the three packages but does state that the Charging Party rejected all three.

The Commission specifically rejects the hearing officer's finding that "Respondent submitted three separate package proposals to the OCTA." Rather, the evidence shows, and the hearing officer found in his next sentence, that only two proposals were presented to OCTA; the third was presented to the Special Master. The Commission so finds.

The Commission also finds it necessary to make the following additional findings of fact:

The salary proposal submitted by Respondent on July 28 was the salary schedule in effect for the 1974-1975 school year. The identical schedule was presented on August 21. It contained experience increments. The salary proposal was given to OCTA for the second time at eleven o'clock at night on August 21 as the negotiating session was about to end. It was presented with the comment. "You people better take this one now, or you won't like the next one." The salary proposal presented to the Special Master did not provide for experience increments.

The Commission finds that Respondent committed an unfair labor practice by submitting a salary proposal to the Special Master that was less than that offered to OCTA at the parties' last negotiating session before reaching impasse.

Special Masters are not appointed for the purpose of hearing, de novo, collective bargaining agreement proposals. Rather, they are appointed to recommend a resolution of proposals on which the parties cannot reach agreement following a reasonable period of negotiations. Madison County Education Association v. District School Board of Madison County, 4 FPER ¶4OO6 (1977). In presenting the issues to the Special Master, the parties must submit their positions as of impasse; the issue in dispute is whether the collective bargaining agreement should encompass one of these positions or whether it should provide for a compromise between the two.

Respondent, by submitting a proposal to the Special Master which was less than the proposal it had submitted to OCTA at the time impasse was declared, failed to bargain collectively in good faith in violation of Section 447.501(1)(c). In addition, its actions violated Section 447.501(l)(a) by interfering with, restraining, and coercing its employees in the bargaining unit represented by OCTA in the exercise of rights guaranteed them under the Act.

Paragraph 10(G) alleges that Respondent, through its agent Stephen Sharpe, rejected the Special Master's recommendation regarding the selection of summer school teachers even though that recommendation was substantially equivalent to a proposal made by Respondent, through its agents-negotiators, on August 21,1975. The hearing officer considered this allegation in his Issue IX.

In his findings of fact, the hearing officer states that:

"As stated above, [referring to his findings of fact regarding the allegations contained in paragraph 10(F) of the complaint, the Respondent had presented three separate package proposals to the OCTA. The proposal presented to the Special Master on September 5, 1975 differed from the proposal presented to the OCTA on August 21, 1975. Therefore the proposal regarding the selection of summer school teachers presented on August 21, 1975 was a part of and limited by the other proposals presented at that time. Similarly the proposals presented to the Special Master on September 5 were a part of and limited by the other proposals contained in that package.

In his "Conclusions of Law," he makes the additional finding of fact that the evidence does not support a finding that the proposal regarding selection of summer school teachers that was submitted to the Special Master was essentially the same as the one submitted to OCTA.

The hearing officer makes no finding as to the similarity between the Special Master's summer school teacher proposal and that made by Respondent on August 21, 1975. Furthermore, he makes no finding regarding Respondent's alleged rejection of the Special Master's recommendation on this issue.

For the reasons set forth in our discussion of paragraph 10(F), the Commission specifically rejects his finding that "Respondent had presented three separate package proposals to the OCTA." Rather, we reiterate our earlier finding that Respondent presented two package proposals to OCTA and one to the Special Master.

The following additional facts are necessary for the Commission's consideration of the issue raised in paragraph 10(G):

The School Board's proposal of August 21, 1975, regarding selection of summer school teachers provided:

Selection of summer school teachers will be made by the Superintendent or his designee and seniority will be one of the factors in making this determination.

The Special Master's recommended decision regarding selection of summer school teachers provided:

Selection of summer school teachers will be made by the Superintendent or his designee and seniority will be a factor in making the selection. All applicants shall be notified in writing of the disposition of their application as soon as practical.

On October 17, 1975, Stephen E. Sharpe, Superintendent of Schools of Osceola County, wrote William N. Coffman, Jr., President of the OCTA, and informed Coffman of Sharpe's rejection of twenty of the Special Master's recommendations, including the recommendation regarding selection of summer school teachers. OCTA asked the School Board why it rejected this recommendation, but it did not respond.

The Commission finds that Respondent's rejection of the Special Master's selection of summer school teachers recommendation is not per se an unfair labor practice in this case. It is, however, an indicia of failure to bargain in good faith.

Conditions may change between the time a proposal is made in negotiations and a Special Master issues his recommended decision. In addition, certain proposals may be keyed to others. Both parties should be free to weigh the viability of each of the provisions recommended by the Special Master in light of conditions in existence at that time and in conjunction with other related recommended provisions. In the absence of a showing of arbitrary rejection, therefore, the Commission will not find a failure to bargain in good faith where a party rejects a Special Master's recommendation which is similar to one submitted by that party during negotiations.

The record in this case is insufficient to show arbitrariness on the part of the School Board in rejecting the Special Master's selection of summer school teachers recommendation. The Commission notes that this lack of evidence is due in part to the School Board's refusal to respond to OCTA's request for reasons for the rejection. The Act did not mandate a response in 1975; it now does.⁽⁸⁾

Paragraph 10(H) alleges that from the receipt of the Special Master's recommended decision until the date of the legislative hearing, Respondent refused to bargain, upon request, over all but six mandatory bargaining items in dispute. The hearing officer considered this allegation in his Issue XI.

The hearing officer found that the parties had two meetings after they received a Special Master's recommended decision. At the first meeting, on October 16, 1975, the Respondent's negotiating team indicated that Respondent would accept six or seven of the recommendations but would not discuss the remaining ones. OCTA indicated at that time that it would accept the entire recommended decision and asked Respondent to state its positions with regard to the other items. Respondent refused. By letter dated October 17, 1975, Respondent advised OCTA of twenty recommendations of the Special Master which it rejected.

The second meeting was held on October 21, 1975. At that time OCTA again stated that it would accept the Special Master's report, and Respondent again refused to discuss the recommendations which it rejected. According to the hearing officer, it was Respondent's position "that an impasse existed and the matter would be presented to the legislative hearing. Therefore, it did not wish to reveal the position which it would take before the legislative hearing."

The Commission makes the additional finding that the "legislative hearing" referred to by the hearing officer was a public hearing set by the School Board for the purpose of considering the Special Master's recommendations.

The Commission finds Respondent committed an unfair labor practice by refusing to discuss the twenty recommendations of the Special Master with which it did not agree.

Section 447.403(2Xb) provided in pertinent part:

Within 20 calendar days after final hearings, the commission shall transmit the recommended decision of the special master or masters to the representatives of both parties, which decision shall be discussed further by the parties in negotiations and shall be deemed approved by both parties unless either party, by formal action, rejects the decision within 15 calendar days of the transmission of the decision to the parties.⁽⁹⁾

(emphasis supplied).

It is unquestionably clear that the parties had a statutory obligation to discuss the Special Master's recommended decision and continue negotiations on those provisions on which they did not agree. Respondent's refusal to discuss twenty of the Special Master's proposals, even after the Charging Party specifically requested a statement of its position, is in contravention of the express language of the Act, and constitutes a violation of Section 447.501(l)(c) which prohibits public employers, their agents or representatives, from "refusing to bargain collectively in good faith." Furthermore, it is a violation of Section 447.501(l)(a) which prohibits them from "interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them" under the Act.

Paragraph 10(J) alleges that on or about February 3, 1976, Respondent unilaterally instituted changes in teaching supplements. In his response to the motion for more definite statement of facts, the attorney representing the Commission's General Counsel stated that this allegation referred to teaching supplements for certain specified coaches. The hearing officer dealt with this allegation in his Issue IV.

The hearing officer found that certain coaching positions were deleted by the School Board, in part, because of its "decision to comply with federal guidelines by providing a more balanced athletic program for both male and female students within the Osceola County School System." He stated that this was the same as the situation regarding the middle school band and intramural directors and found:

"The evidence does not support a fact [sic] that there was a change in salary supplements but that the positions for which the supplements had been paid were deleted and new positions created as a result of a decision by the Respondent to change the academic program within the Osceola School System. No evidence was presented that the question of maintenance of coaching positions was an appropriate subject of bargaining either by agreement of the parties or by custom."

The Commission specifically rejects the hearing officer's finding that salary supplements were not changed. Following a review of the record the Commission makes the following additional findings of fact:

On December 2, 1975, "the School Board Employer ratified a total contract." By memorandum dated January 30, 1976, Stephen Sharpe, the School Board's Superintendent, recommended changing certain coaching positions. In addition, he recommended additional supplements for certain coaches. At its meeting of February 3, 1976, the School Board approved his recommendations. According to Mr. Sharpe, the additional supplements were recommended to pay teachers for work they had been doing voluntarily. The record is not clear as to whether coaches who had their coaching positions changed had their supplements modified; however it appears they did not. Mr. Sharpe did not negotiate the supplement changes with the OCTA.

The Commission finds the School Board committed an unfair labor practice when it unilaterally awarded teaching supplements to certain coaches.

This unilateral action was taken by the School Board after its December 2 "ratification of a contract" with OCTA. A public employer who is bargaining with an employee organization may take unilateral action with respect to wages and other terms and conditions of employment of its employees in the bargaining unit generally only at the end of the impasse procedure when it acts as a legislative body pursuant to Section 447.403(2)(c)(4).⁽¹⁰⁾

Pinellas County Police Benevolent Association, supra, 3 FPER at 208. Unilateral alteration of wages, hours, and other terms and conditions of employment during the pendency of a collective bargaining agreement constitutes a refusal to bargain collectively in violation of Section 447.501(1)(c). Furthermore, it violates Section 447.501(l)(a) by interfering with and restraining public employees in the exercise of rights guaranteed them under the Act, including the Section 447.301(2) right "to negotiate collectively through a certified bargaining agent with their employer in the determination of the terms and conditions of their employment."

Paragraph 10(K) alleges on or about January or February, 1976, Respondent through its agent Paul Runge, for the purpose of preparing future bargaining proposals, solicited information and assistance concerning teaching supplements directly from unit members without dealing by and through the Charging Party. The hearing officer considered this allegation in his Issue V.

The hearing officer found that the coaches were concerned about teaching supplements. The head coach at Osceola High School, Claude Woodruff, contacted Mr. Runge in the Superintendent's office and stated that he wanted to present some research on coaching supplements. Mr. Runge indicated he would consider such a report. Once information was obtained, the coaches met and made recommendations regarding the sports which should be included in the athletic program and the formula which should be used to compute coaches' supplements. The report did not specify amounts of supplements. Copies of the report were submitted to Mr. Runge and the Chief Negotiator for the OCTA. The hearing officer stated that "The record clearly indicates that coach Woodruff approached Mr. Runge" about submitting the information.

Based upon these facts, the Commission concludes Respondent did not solicit information regarding coaching supplements from the coaches; Respondent, therefore, did not commit an unfair labor practice as alleged in paragraph 10(K).

There remains for consideration by the Commission the allegation alleged in the opening sentence of Paragraph 10, i.e., that Respondent engaged in a course of conduct constituting refusal to bargain in good faith. The hearing officer did not address this allegation.

Before considering this issue, the Commission finds it necessary to make the following additional findings of fact:

The negotiating teams representing the School Board and the OCTA first exchanged proposals on April 30, 1975. The OCTA's proposal contained detailed proposals on all articles they proposed to negotiate and on all the sub-items under each article; it was approximately 50 pages in length. The proposal submitted in behalf of the School Board was one page and provided, in toto:

SCHOOL BOARD PROPOSALS

1. Recognition will be determined by the PERC.

2. Dues deduction procedures will be determined by the School Board.

3. Teacher rights and responsibilities will be as determined by State Law and the School Board.

4. School Board rights and responsibilities will be determined by the School Board.

5. Working conditions for all employees of the School Board will be determined by the School Board.

6. Vacancies, promotions and transfers will be determined by the School Board.

7. All employee assignments will be determined by the School Board.

8. All leave will be determined by the School Board.

9. Protection of teachers will be determined by the School Board.

10. Grievance procedures will be determined by the School Board.

11. Professional compensation will be determined by the School Board.

OCTA attempted to negotiate salaries before school was out in mid-June; the School Board team refused, saying they had not had time to prepare their counter-proposals.

Following a review of the record, the Commission concludes that Respondent did engage in a course of conduct constituting a refusal to bargain in good faith.

The First District Count of Appeal discussed good faith bargaining in Duval County School Board v. Florida Public Employees Relations Commission, So.2d (Fla. 1st DCA 1977). (Case No. FF-489, Opinion filed January 11, 1978). There the Court said:

The requirement of bargaining in good faith imposes upon the employer and the employee organization an obligation to come to the bargaining table with an open mind and a sincere desire to reach an agreement. N.L.R.B. v. Montgomery Ward & Co., 118 F.2d 187 (7th Cir. 1941). The legislature has recently defined good faith bargaining as including ". . . an obligation for both parties to actively participate in the negotiations with an open mind and a sincere desire, as well as making a sincere effort to resolve differences and come to an agreement, Chapter 77-343, §6, Laws of Florida.

When a party bargains in good or bad faith is a factual determination based on the circumstances of the particular case. N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149(1956). When a party has been charged with failing to bargain in good faith, the overall conduct of the parties throughout the course of negotiations must be considered. School Board of Escambia County, v. P.E.R.C., 350 So. 2d 819 (Fla. 1st DCA 1977).

The totality of the School Board's conduct in this case does not indicate an "open-minded" approach to the bargaining process and a sincere desire to reach a negotiated agreement. At the first bargaining session, the School Board presented as its "proposal" a list of eleven items, none of which were open for negotiation. It refused to discuss certain of OCTA's proposals at all, maintaining they were "management rights which were not for sale." It refused to discuss salaries until July 28, at which time it presented the identical salary proposal that had been in effect the preceding year; this schedule provided for experience increments. Around eleven o'clock the night of August 28, at the end of a negotiating session, it again presented OCTA with the 1974-75 salary schedule with the comment, "You people better take this one now or you won't like the next one." Following rejection of this proposal by the OCTA the School Board submitted to the Special Master a salary proposal which did not provide for experience increments.

When the School Board negotiators received the Special Master's report, they rejected twenty of his twenty-six proposals, including one that was virtually identical to a proposal it had made on August 21. In addition the School Board refused to explain the basis for the rejections and refused to negotiate further, saying "it did not wish to reveal the position it would take before the legislative hearing."

During negotiations, the School Board unilaterally altered salary supplements for middle school band and intramural directors. After an agreement for the 1975-1976 school year was in effect, it unilaterally altered the salaries of certain coaches. These actions were taken without consultation with OCTA.

Clearly these facts indicate Respondent engaged in a course of conduct constituting failure to bargain in good faith, in violation of Section 447.501(l)(c) and (1)(a).

Paragraph 11(A) alleges Respondent, on or about October 22, 1975, attempted to undermine OCTA as the exclusive bargaining agent for the employees in the unit it represents by making it known that adult education salary cuts were linked to collective bargaining negotiations still in progress at that time. The hearing officer discussed this allegation in his Issue II.

In its consideration of paragraphs 10(A) and (B), the Commission found the adult education teachers were not included in the bargaining unit represented by OCTA. It, therefore, is not necessary to consider the allegations contained in paragraph 11(A). The Commission is limited to consideration of allegations of unfair labor practices committed by the School Board with respect to its employees in the bargaining unit represented by OCTA.

Paragraph 11(B) alleges on or about August 14, 1975, Respondent, through its agent, Jack Strickland,⁽¹¹⁾ attempted to undermine OCTA as the exclusive bargaining agent for the employees in the unit it represents by threatening loss of existing benefits of unit members absent agreement on a new collective bargaining package. The hearing officer considered this allegation in his Issue IV.

According to the hearing officer, the attorney representing the Commission's General Counsel subpoenaed a newspaper reporter who quoted Mr. Strickland as saying that, in the absence of an agreement, members of the bargaining unit represented by OCTA would lose their existing fringe benefits. The reporter filed a motion to revoke the subpoena. The motion was denied by the hearing officer and the attorney representing the General Counsel was given the opportunity to present the reporter's testimony by deposition. The attorney did not enforce the subpoena.

At the hearing, the attorney sought to introduce the newspaper article. The hearing officer refused to admit it into evidence since the reporter was not available for cross-examination. According to the hearing officer, "In the absence of the testimony of the reporter there is no competent evidence that John [Jack] Strickland threatened the loss of existing benefits to unit members."

The Commission makes the following additional findings of fact:

Mr. Strickland testified that he did not recall speaking to reporters on or about August 15 and did not remember making the statement that, ". . . we don't have any obligation to provide vacations or leave time until a new contract is made."

The record is devoid of evidence supporting the allegation contained in paragraph 11(B). The Commission, therefore, cannot find an unfair labor practice as charged.

The Commission, on the basis of the foregoing facts and the record as a whole, makes the following conclusions of law:

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

2. The Osceola Classroom Teachers Association is an employee organization within the meaning of Section 447.203(11) and is the certified bargaining representative for the employees in the previously described unit.

3. By unilaterally altering teaching supplements for middle school band and intramural directors and certain coaches; by refusing to discuss certain of OCTA's proposals; by submitting a salary proposal to the Special Master that was less than that offered to OCTA at the parties' last negotiating session before reaching impasse; by refusing to discuss before the meeting of the legislative body the Special Master's recommendations which it rejected; and by engaging in a course of conduct indicating a refusal to bargain collectively in good faith, the School Board has refused to bargain collectively and has failed to bargain collectively in good faith in violation of Section 447.501(1)(c). As a result, the School Board has interfered with, restrained and coerced its employees in the bargaining unit in the exercise of rights guaranteed them under the Act in violation of Section 447.501(1)(a).

Having found that the School Board engaged in certain unfair labor practices in violation of Section 447.501(l)(a) and (c), the Public Employees Relations Commission, pursuant to Section 447.503(4)(a), orders that the School Board of Osceola County, Florida shall:

1. Cease and desist from:

a. Unilaterally altering teaching supplements during negotiations or after an agreement has been reached;

b. Refusing to discuss proposals submitted by OCTA on the ground they are "management rights";

c. Submitting proposals to a Special Master that are less than that offered to OCTA at their last negotiating session;

d. Refusing to discuss the Special Master's recommended decision before it is submitted to the legislative body.

e. In any like or related manner, refusing to bargain collectively and failing to bargain collectively in good faith over wages, hours and terms and conditions of employment;

f. In any like or related manner, interfering with, restraining, or coercing its public employees in the exercise of rights guaranteed them under the Act.

2. Take the following affirmative action which the Commission finds necessary to effectuate the purposes of the Act:

a. Upon request, meet with representatives of the Charging Party and bargain collectively with respect to all subjects found in this order to be proper subjects of collective bargaining.

b. Make whole all affected employees by returning to them any benefits, financial or otherwise, they would have received had the Respondent maintained the status quo until legislative action was taken pursuant to Section 447.403, Florida Statutes or a collective bargaining agreement was ratified.

c. Post, in all facilities of the School Board, copies of the attached Notice. Copies of the Notice provided by the Public Employees Relations Commission shall be signed by the School Board's authorized representative prior to posting and shall be posted by the School Board immediately upon receipt in conspicuous places, including places where notices to employees are customarily posted. The School Board shall maintain the posting for 60 days and shall take reasonable steps to ensure that the notices are not altered, defaced or covered by other materials.

d. Notify the Commission in writing, within 20 calendar days from the date of this decision, explaining what steps have been taken to comply herewith.

It is so ordered.

THOMAS F. LANG, Associate Commissioner, concurring in part and dissenting in part:

I specifically dissent from the finding that an unfair labor practice was committed when the Employer unilaterally eliminated certain supplements for middle school band and intramural directors without giving the OCTA an opportunity to bargain over the elimination. My reasoning would be the same as that set forth in my dissent in John Palowitch and Orange County Classroom Teachers Association V. Orange County School Board, supra. I would additionally dissent from imposing any remedy for such activity.

I concur with the remainder of the Order.

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ENDNOTES

1. The charge is dated January 6, 1976; the amended charge is dated February 5,1976. The certificates of service attached to each indicate copies were mailed to Respondent on those dates. An investigation was conducted by an agent of the Commission pursuant to Section 447.503(1), Florida Statutes (1975) and Fla. Admin. Code Rule 8H.4.02(a). Thereafter, the complaint and notice of hearing was issued May 24, 1976, by the General Counsel pursuant to Fla. Admin. Code Rule 8H-4.O3. The complaint and notice of hearing informed the parties that a hearing would be held pursuant to Section 447.503(31(a), Florida Statutes (1975) and Fla. Admin. Code Rules 8H-4.03, 4.08, and 4.10. Such hearing was held before a Hearing Officer from the Department of Administration, Division of Administrative Hearings. At the hearing, the parties were afforded the opportunity to appear, to examine and cross~examine witnesses, and to introduce relevant evidence.

2. Unless otherwise noted, all statutory references are to Florida Statutes (1975).

3. Although the hearing officer's recommended order states that the hearing was held on June 1 and 2, 1976, it is clear from the Complaint and Notice of Hearing as well as the Transcript of Proceedings that the heating was held in July.

4. The unit description in the complaint refers to "direct of personnel and community relations." The stipulation included the correction of the word "direct" to "director."

5. §447.403(4)(d), Fla. Stat. (1975) as amended by Ch. 77-343, §15, Laws of Florida.

6. The hearing officer's report, on page 14, incorrectly refers to "September 5, 1976."

7. The Commission finds paragraphs H and I of page 1 of Joint Exhibit 13 provide as follows:

H. A teacher who is asked by the administration to give up his planning period shall receive no less than the professional hourly rate for this period.

I. The Board shall employ teachers for curriculum development and other school-related planning. Teachers shall be compensated at no less than the per-diem rate such teacher received during the regular school year.

8. §447.403(3), Fla. Stat. (1975), as amended by Ch. 77.343, §15, Laws of Florida, provides in pertinent part:

"Such recommended decision [of the Special Master] shall be discussed by the parties and shall be deemed approved by both parties unless either party by written notice . . . rejects the recommended decision. . . The written notice shall include a statement of the cause for rejection and shall be served upon the other party."

9. Section 447.403(2)(b) was amended in 1977 by Chapter 77.343, Section 15, Laws of Florida. Inasmuch as paragraph 10(H) involves actions taken in 1975, the amendment is not applicable.

10. §447.403(4)(d), Fla. Stat. (1975), as amended by Ch. 77.343, §15, Laws of Florida.

11. The complaint refers to "John" Strickland. At the hearing, however, the parties stipulated to an amendment to read "Jack." Tr. p.38; Recommended Order, p.4. The stipulation was accepted by the hearing officer.