ARBITRATION & UNFAIR LABOR

PRACTICESFLORIDA EDUCATIONAL

NEGOTIATORSMAY 15, 2014

Presented byMark E. Levitt, Esq.Allen, Norton & Blue, P.A.

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Topics

Arbitration

Unfair Labor Practices

Recent PERC Cases

Arbitration

Current Issues

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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

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The Arbitration Hearing

Educate the Arbitrator

What happened? Frame the issue Present Documents Examine Witnesses

Why is the case significant?

Unique attributes of Schools

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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?

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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

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“Arguably Arbitrable” Pensacola Junior College Faculty Ass’n v. Pensacola Junior

College Bd. of Trustees, 50 So.3d 700 (Fla. 1st 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

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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)

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Arbitration v. Administrative Hearing

Administrative Hearing pursuant to section 1012.33, 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. 1st 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

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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 31221 (2000) Loser Pays Restrictions of remedies, such as reinstatement Prohibiting arbitrator from requiring progressive

discipline or relying on concept of industrial justice

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Recent Cases Marion County School Board, 130 LA 193

(Abrams, 2012)Management rightsArbitrator 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

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Recent Cases Orange County, Florida, 131 LA 1111

(Smith, 2012) Just CauseSchool 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

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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

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Unfair Labor Practices

Current Issues

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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

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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

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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

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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

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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

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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

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ULP Hearing

Evidentiary hearing conducted by PERC hearing officer to resolve issues of material fact

Telephone hearingSend exhibits in advanceOpening StatementWitnessesDocumentation

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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

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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

Recent Cases

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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

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Recent Cases

Manatee Education Ass’n v. School Board of Manatee County, 62 So.3d 1176 (Fla. 1st DCA 2011). School District declared financial urgency pursuant to

447.4095. Union claimed that School District was required to prove the existence of a financial urgency before proceeding under 447.4095

First DCA held: School Board did not need to prove existence of financial

urgency before proceedings under 447.4095 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)

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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

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Recent Cases

Palm Beach County Classroom Teachers Ass’n, Inc. v. School District of Palm Beach County, 2011 WL 2275546 (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

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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

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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

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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.

Mark E. Levitt, Esq.

1477 West Fairbanks Ave., Suite 100Orlando, FL 32814

(407) 571-2152mlevitt@anblaw.com

Questions?