ARBITRATION & UNFAIR LABOR PRACTICES FLORIDA EDUCATIONAL NEGOTIATORS MAY 15, 2014 Presented by Mark E. Levitt, Esq. Allen, Norton & Blue, P.A. 1

2 Topics Arbitration Unfair Labor Practices Recent PERC Cases 2

Arbitration Current Issues

4 Selecting an Arbitrator THE MOST IMPORTANT STEP! How does the CBA define the selection process? FMCS, AAA, internal grievance hearing Panel or individual Striking Entire Panel Striking Arbitrators Does the CBA allow for mutual agreement? Research arbitrators Arbitrators know practitioners & practitioners know arbitrators 4

5 The Arbitration Hearing Educate the Arbitrator What happened? Frame the issue Present Documents Examine Witnesses Why is the case significant? Unique attributes of Schools 5

6 The Arbitration Hearing Don’t pick a fight with arbitrator Pick your battles with the Union Documentation is key Don’t overlook arbitrability or procedural issues Timely? Properly stated? Follow procedures in CBA? Bifurcate? 6

7 Briefs Submit a brief with legal and evidentiary support for your position Legal Support Labor Arbitration cases Standard of Review Preponderance of evidence Clear and convincing Evidentiary Support Tell your side of the story Address weaknesses in your case 7

8 “Arguably Arbitrable” Pensacola Junior College Faculty Ass’n v. Pensacola Junior College Bd. of Trustees, 50 So.3d 700 (Fla. 1 st DCA 2010) Union filed a grievance claiming that the College failed to provide an automatic pay increase. The College denied the grievance and refused to process to arbitration, claiming that it was not arbitrable because the contract year was not over and the grievance was premature. District Court held that an employer must proceed to arbitration unless the contract article establishes with “positive assurance” that the subject of the grievance is not covered by the contract. When in doubt, proceed to arbitration but argue arbitrability 8

9 Deferral PERC has preemptive authority to investigate and resolve charges of unfair labor practices If a Union’s grievance is really arguing that the employer committed an unfair labor practice, the issue must be decided by PERC unless PERC “defers” jurisdiction to an arbitrator If Union raises at Arbitration, raise issue of deferral in brief Communications Workers of America v. Indian River County School Bd., 888 So.2d 96, 100 (Fla. 4th DCA 2004). State v. International Union of Police Associations, 927 So.2d 946, 947 (Fla. 1st DCA 2006) 9

10 Arbitration v. Administrative Hearing Administrative Hearing pursuant to section , Fla. Stat. May be conducted by school board or an administrative law judge with Department of Administrative Hearings Ultimate decision made by school board (as opposed to arbitrator) Appealable on limited grounds to circuit court Eliminating discipline or other issues from the CBA “The Legislature has mandated that each public employer and bargaining agent must negotiate a grievance procedure, it has not… specified which issues must be included in the procedure.” AFSCME, Local 1363 v. PERC, 430 So.2d 481 (Fla. 1 st DCA 1983). No requirement that employee discipline be included in a negotiated grievance procedure. Citrus Workers, Local 173 v. Sarasota County, 738 So.2d 953 (Fla. 2d DCA 1998) Clay County Sheriff Impasse – Special Magistrate agreed to exclude disciplinary procedure from contract, finding that the Career Service Appeals Board was an adequate mechanism to address any arbitrary or unjust discipline 10

11 Nonstandard Arbitration Provisions May reach agreement with Union on any type of arbitration provision Imposition of nonstandard arbitration provisions is unlawful. District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union v. Canaveral Port Authority, 26 FPER (2000) Loser Pays Restrictions of remedies, such as reinstatement Prohibiting arbitrator from requiring progressive discipline or relying on concept of industrial justice 11

12 Recent Cases Marion County School Board, 130 LA 193 (Abrams, 2012) Management rights Arbitrator would not consider PERC cases because his power was limited to reading and interpreting contract provisions School Board did not violate contract when it did not pay step increases not required by the CBA 12

13 Recent Cases Orange County, Florida, 131 LA 1111 (Smith, 2012) Just Cause School Board had just cause to suspend teacher who allowed special needs student to leave classroom and fall out of his wheelchair. Suspension was not unreasonable, arbitrary, or abuse of discretion 13

14 Recent Cases School District of Escambia County, 131 LA 384 (Wood, 2012) Just Cause Just cause to terminate teacher who engaged in inappropriate conduct with a student in violation of State and School District Code of Conduct and Code of Ethics Employee had notice that violating Code of Ethics could lead to dismissal, offense was severe, lesser penalty would not correct behavior, and no disparate treatment 14

Unfair Labor Practices Current Issues

16 Employer ULPs Interfering with, restraining, or coercing public employees in the exercise of rights under Ch. 447 Encouraging or discouraging membership in any employee organization by discrimination Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement 16

17 Employer ULPs Discharging or discriminating against public employee for filing charges or giving testimony Dominating, interfering with, or assisting in the formation, existence, or administration of a union, or contributing financial support Refusing to discuss grievances in good faith with union or employee 17

18 Union ULPs Interfering with, restraining, or coercing either public employees in exercise of rights or managerial employees in performance of duties Discrimination against employee because of membership or non-membership in Union Refusing to bargain collectively or failing to bargain in good faith Discriminating against employee because of affidavit, petition, complaint, or testimony Participating, instigating, or supporting a strike (penalties) Instigating or advocating support for Union from students 18

19 Common ULPs Duty to Bargain in Good Faith (employer or union) Unlawful unilateral change (employer) Refusal to discuss grievances (employer or union) Denial of representation (union) Employee must raise Breach of duty of fair representation (union) Employee must raise 19

20 ULP Process File ULP Charge with PERC 6 months from date of act Must include clear and concise statement of facts Must name all individuals involved Identify ULP violations and elements Sworn statements and documentary evidence establishing prima facie violation PERC General Counsel reviews for sufficiency Summary dismissal If sufficient, hearing officer appointed 20

21 ULP Process Answer May file 20 days after Notice of Sufficiency Other interested parties may intervene Prehearing orders May require written statements regarding relevant issues of fact and law Will narrow issues and expedite resolution Identify witnesses, exchange exhibits Pre-hearing conference 21

22 ULP Hearing Evidentiary hearing conducted by PERC hearing officer to resolve issues of material fact Telephone hearing Send exhibits in advance Opening Statement Witnesses Documentation 22

23 ULP Process Proposed Recommended Orders Include proposed findings of fact & conclusions of law Discuss recommended rulings on procedural matters Argument based on PERC precedent Hearing Officer’s Recommended Order Within 45 days of hearing (If you request an extension for PRO, also request extension for hearing officer) Issues findings of fact Recommended conclusions of law Recommend remedy and attorneys’ fees 23

24 ULP Process Exceptions to Hearing Officer’s Recommended Order Usually 20 days after, deadline set forth in HORO Exceptions to findings of fact and conclusions of law Request Oral Argument Final Order from PERC Appeal 24

Recent Cases

26 Recent Cases Orange County Classroom Teachers Ass’n, Inc. v. School District of Orange County, 40 FPER 323 (2014) School District implemented professional development courses during the summer and Union claimed issue was subject to bargaining School District did not commit ULP when it implemented terms and conditions of employment that had been included in the CBA for over ten years 26

27 Recent Cases Manatee Education Ass’n v. School Board of Manatee County, 62 So.3d 1176 (Fla. 1 st DCA 2011). School District declared financial urgency pursuant to Union claimed that School District was required to prove the existence of a financial urgency before proceeding under First DCA held: School Board did not need to prove existence of financial urgency before proceedings under Union does not waive its right to contest the actual existence of financial urgency by not participating in proceedings Deferred to PERC to define financial urgency (no decision) 27

28 Recent Cases United Teachers of Monroe, Local 3709 v. School District of Monroe County, 38 FPER 288 (2012) School District and Union negotiated letters of understanding (LOUs) regarding furloughs. State attorney told employer that the negotiations violated sunshine law, so employer offered to “wipe slate clean” and impact bargain PERC held that under the circumstances, District fulfilled its duty to bargain in good faith and did not commit ULP by repudiating LOUs 28

29 Recent Cases Palm Beach County Classroom Teachers Ass’n, Inc. v. School District of Palm Beach County, 2011 WL (2011) General Counsel summarily dismissed unfair labor practice charge, holding that employer does not alter a mandatory subject of bargaining by changing a past practice by reverting to contractual pay scale 29

30 Recent Cases School District of Polk County v. Polk Education Ass’n, 100 So.3d 11 (Fla. 2d DCA 2011) and School Districts of Polk County v. Polk County Non-Industrial Employees Union, Local 2272, AFSCME, 100 So.3d 16 (Fla. 2d DCA 2011) District unilaterally altered term of employment by altering health insurance plan referenced in CBA Participation in Superintendent’s Insurance Committee was not intended to be a waiver of Union’s right to collectively bargain over health insurance School District’s budget issues did not amount to exigent circumstances permitting unilateral change 30

31 Recent Cases Levy County Education Ass’n v. School District of Levy County, 38 FPER 336 (2012) General Counsel summarily dismissed unfair labor practice charge because the Union did not state a prima facie case. Employer committed no statutory violation by taking the position that it did not want to include certain mandatory subjects of bargaining in the CBA 31

32 Recent Cases Marion Education Association v. School District of Marion County, 40 FPER 177 School District committed unfair labor practice by altering the status quo concerning the hiring of substitute teachers to fill in for staff on long-term approved leaves of absences PERC said substitutes were indistinguishable from bargaining unit teachers except for low wages and no benefits The abolishment of bargaining unit positions and transfer of work to non-unit positions was not a management right. 32

Mark E. Levitt, Esq West Fairbanks Ave., Suite 100 Orlando, FL (407) Questions?