v.

School District of Broward County, Respondent.

Docket No. CA-87-070; Order No. 88U-127

June 7, 1988

Before Mattimore, Chairman; Sloan and

Poole, Commissioners

Jeffrey P. Manners, Miami Lakes, attorney for charging party.

Elizabeth S. Syger, Miami, attorney for respondent.

FINAL ORDER

MATTIMORE, Chairman.

On September 21, 1987, the Federation of Public Employees a Division of District No. 1, Pacific Coast District, MEBA, AFL-CIO (Federation), filed an unfair labor practice charge alleging that the School District of Broward County (School District) violated § 447.501(l)(a) and (c), Florida Statutes (1987),⁽¹⁾ by unilaterally changing its past practice with respect to the recordation of time worked by certain employees within the bargaining unit. More specifically, the Federation alleged that the School Board installed time clocks for use by employees in the maintenance division without bargaining. The Commission's General Counsel determined the charge to be sufficient on September 28, 1987.

On October 15,1987, the School District filed its answer to the charge. In its answer, the School District denied that the use of time clocks constituted a significant change from past practice. Further, the School District asserted that its actions were proper in light of Article XIX, Management Rights, Section B.10, of the parties' 1985-1988 collective bargaining agreement. Lastly, the School Board argued that the Federation had waived its right to bargain over the installation of time clocks because it had failed to timely demand bargaining over this subject.

On November 10, 1987, an evidentiary hearing in this case was conducted before a Commission-appointed hearing officer. At that time, all parties were given the opportunity to appear, present evidence, and cross-examine witnesses. On December 23,1987, the hearing officer issued a recommended order which is incorporated herein. The hearing officer concluded that the School District had violated § 447.501 (1)(a) and (c) by unilaterally implementing a system of time clocks for maintenance division employees. Accordingly, the hearing officer recommended that the Commission direct the School Board to cease and desist from utilizing time clocks for the affected employees.

On January 12,1988, the School Board filed thirty-three exceptions to the recommended order, accompanied by a brief. The Federation responded to these exceptions on February 2, 1988. On February 10, 1988, the School Board filed a motion for oral argument. This motion was granted, and oral argument was heard in this case on March 17, 1988. Subsequent to oral argument, both parties agreed to waive the ninety-day time limit for the issuance of the Commission's final order in this case. See § 120.59(l), Fla. Stat. (1987).

Based upon our review of the record in this case, including exceptions, briefs and oral argument, we conclude that the hearing officer's findings of fact, except for findings 15 and 41, are supported by competent, substantial evidence. Therefore, the Commission adopts the hearing officer's findings of fact, except for findings 15 and 41. The School Board's exceptions 3, 6, 7, 8, 11, 12, 22, and 26 to the hearing officer's findings of fact are accordingly DENIED and exceptions 10 and 14 are GRANTED. Likewise, the school Board's exceptions 13, 18, 19, and 20 contesting the hearing officer's failure to make certain findings of fact are DENIED. In each instance the hearing officer made substantially similar findings. Furthermore, we agree with the hearing officer's characterization of the School Board's proposed findings of fact 12 and 13 as irrelevant and unnecessary. Accordingly, the School Board's exceptions 15 and 16 are DENIED. The School Board's exceptions 9, 17, 21, and 24 are also DENIED as unnecessary, since they have no impact upon our resolution of this case.

While we have, for the most part, adopted the hearing officer's findings of fact, we decline to adopt the hearing officer's analysis and conclusions of law. Instead, we conclude, for the reasons which follow, that the School Board did not commit an unfair labor practice by unilaterally instituting a time clock system.

The significant facts of this case as found by the hearing officer may be summarized as follows. Prior to July 1, 1987, employees in the School District's maintenance division, as a minimum requirement,⁽²⁾

kept track of their time worked through the use of an "honor system." Under this system, employees were required to report to work at the beginning of their shifts, and work until the end of each shift. These employees were not required to report their daily times worked to their supervisors, but instead, were obligated only to verbally report absences and tardiness. In the absence of such report, employees were credited with working a full shift. Employees who were excessively tardy prior to July 1, 1987, could be subject to disciplinary action. Further, absences and tardiness were applied against the employee's annual leave rather than against their pay.

On July 1, 1987, the School District instituted a time clock system for employees in the maintenance division. Pursuant to this system, employees are required to "punch in" on a time clock at the beginning of each shift, and "punch out" on the time clock at the end of their shift. The imposition of this system has no economic effect on the employees. Tardiness and absences continue to be assessed against annual leave, and employees remain immune from being docked pay for tardiness.⁽³⁾

The time clock system also has not resulted in a change of any pre-existing disciplinary rules. Employees remain obligated to work their full shifts, and may be disciplined for their failure to do so. The only difference between the "honor system" and the time clock system is that employees must now physically punch, or insert a time card into, a time clock at the beginning and end of each shift.⁽⁴⁾

The dispositive issue in this case is whether the School Board violated §447.501(l)(a) and (c); by unilaterally instituting a time clock system. As the hearing officer correctly states, absent a clear and unmistakable waiver by the certified bargaining agent, exigent circumstances requiring immediate action, or legislative body action after impasse, a public employer's unilateral change of wages, hours, or terms and conditions of employment of employees represented by a certified bargaining agent constitutes a per se violation of § 447.501 (1) (a) and (c). See International Association of Fire Fighters. Local 754 v. City of Tampa, 13 FPER ¶ 18129 (1987), aff'd, No. 87-1295 (Fla. 2d DCA Feb. 26, 1988); Hillsborough County PBA v. City of New Port Richey, 12 FPER ¶ 17040 (1985), rev'd on other grounds, 505 So.2d 1096 (Fla. 2d DCA 1987); Palowitch v. Orange County School Board, 3 FPER 280 (1977). aff'd, 367 So.2d 730 (Fla. 4th DCA 1979). Our initial inquiry, therefore, is whether the School Board unilaterally changed a past practice involving wages, hours, or terms and conditions of employment.

We note that we have broadly construed the phrase "terms and conditions of employment" in prior decisions. See Fire Fighters of Boca Raton. Local 1560 v. City of Boca Raton, 12 FPER ¶ 17051 (1986). Applying this broad construction, the hearing officer concluded that the School Board's switch from the "honor system" to the time clock system constituted a change in a term and condition of employment. While we agree that under certain circumstances the implementation of a time clock system may constitute a change in terms and conditions of employment, we conclude that the instant case does not present us with such circumstances.

The implementation of the time clock system in this case has not affected the terms and conditions of employment of the maintenance division employees. The implementation of this system has not resulted in an alteration of pre-existing disciplinary or work rules, and has not caused any financial consequence to these employees. Instead, the institution of the time clocks, which are merely an improved method for monitoring employee attendance, has yielded only one additional requirement. Employees must now physically punch a time clock. In Western Airlines, Inc. and Transport Workers' Union, 67 LA 11 18,1121 (1976) (Weiss, Arb.) the arbitrator stated:

Is punching a time clock a working condition? Where is the financial detriment in the present case? What extra effort is required of the employee? How is their working time affected? What significant redistribution of their duties has taken place? What harm has there been to the employees who are now required to punch a time clock?

Applying these questions to the instant case, we conclude that the implementation of a time clock system by the School Board did not constitute a change in a term or condition of employment. On the contrary, the comparison of the "honor" and time clock systems in this case is a distinction without a difference. Cf. City of New Port Richey v. Hillsborough County PBA, Inc., 505 So.2d 1096 (Fla. 2d DCA 1987) (court determined alteration of the City's pension plan was not a change requiring bargaining where there was no impact upon the employees).

Our conclusion is supported by NLRB decisions concerning the unilateral installation of time clocks. In both Bureau of National Affairs, Inc., 235 NLRB 8, 97 LRRM 1447 (1987) and Rust Craft Broadcasting of New York, Inc., 225 NLRB 327, 92 LRRM 1576 (1976), the NLRB concluded that the implementation of a time clock system, absent an alteration of existing disciplinary and work rules, or impact upon wages, does not constitute a mandatorily bargainable change in terms and conditions of employment. We recognize that in each of these cases the affected employees were required, at the very least, to manually sign time cards or sheets prior to the institution of a time clock system. However, we do not find a substantial distinction between the present case in which employees were required to verbally notify supervisors of absences and tardiness, and the NLRB cases in which employees were required to manually record time worked so as to notify supervisors of absences and tardiness.

Further, this case differs from the NLRB cases cited by the Federation and the hearing officer in which a violation was found based upon the unilateral implementation of a time clock procedure. See, e.g., Nathan Littauer Hospital Association, 229 NLRB 1122 (1977); Murphy Diesel Company, 184 NLRB 757, aff'd, 454 F.2d 303 (7th Cir. 1971). In each of these cases, the implementation of a time clock system resulted in a change of work rules.

In reaching our conclusion that the institution of a time clock system, under the very specific facts of this case, does not constitute a change in terms and conditions of employment, we note that our conclusion might appear, at first blush, to directly conflict with our decision in Jackson County Education Association v. School Board of Jackson County, 3 FPER 276 (1977). In Jackson County we determined that the institution of time clocks was a change in terms and conditions of employment, but that such change did not constitute an unfair labor practice because it was necessary to effectuate provisions in the parties' new collective bargaining agreement. The implementation of the time clock system in Jackson County, however, was also accompanied by a change in certain pre-existing work rules. To this extent, Jackson County is distinguishable from the present case.

In light of the foregoing conclusion that the School Board's implementation of a time clock system, under the facts of this case, did not constitute a change in terms and conditions of employment, it is unnecessary to rule on the other defenses raised by the School Board such as waiver. Accordingly, the Federation's exceptions 1, 2, 4, 23, 25, 31, and 32 are REJECTED as moot. Further, the Federation's exception 28 is REJECTED as contrary to our conclusions set forth herein. Moreover, the Federation's exceptions 27, 30, and 33 are GRANTED, as supportive of the determination that there was no change in the employees' terms and conditions of employment. Based upon our conclusions set forth herein, the Federation's charge is hereby DISMISSED.

This order may be appealed within thirty days by filing a notice of appeal with the Commission and the district court of appeal. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. Further explanation of the right to appeal is provided in §§ 447.504 and 120.68, Florida Statutes (1987), and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed with the Commission within fifteen days. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15.005.

It is so ordered.

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1. All statutory citations are to the 1987 edition of the Florida Statutes, unless otherwise noted.

2. Certain supervisors required more exacting methods of time recordation.

3. The hearing officer found that one unit employee "believes her pay could be docked for the total number of minutes she is late in a month." This finding is based directly upon the employee's testimony, and is therefore supported by competent, substantial evidence. Accordingly, the School Board's exception 5 is DENIED. The hearing officer's finding, however, that this employee's belief was reasonable is not so supported by evidence in the record. The subjective belief of one employee does not constitute a change in conditions of employment. Therefore, we reject this finding and GRANT the Department's exception 29.

4. There is evidence that the School Board has instituted penalties for failure to punch the time clock. The Federation does not contest this action by the School Board, and does not argue that it constitutes a bargainable change. Therefore, we will not address this issue.