erin g. jackson thompson, sizemore, gonzalez & hearing, p.a. [email protected]
TRANSCRIPT
UNFAIR LABOR PRACTICESErin G. JacksonThompson, Sizemore, Gonzalez & Hearing, [email protected]
EMPLOYER ULP (F.S. 447.501(1))
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
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
UNION ULP (F.S. 447.501(2))
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
MOST COMMON ULP
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
C H A R G IN G P A R T Y 'SP R E H E A R IN G S T A T E M E N T
447 .503 (4 ) , FS28-106 .209
R E S P O N D E N T 'SP R E H E A R IN G S T A T E M E N T
447 .503 (4 ) , FS28-106 .209
C H A R G IN G P A R T Y 'SP R O P O SE D F IN D IN G S O F F A C T
28-106 .215 , F AC
R E S P O N D E N T 'SP R O P O SE D F IN D IN G S O F F A C T
28-106 .215 , F AC
R E S P O N S E28-106 .217 (2 ) , F AC
E X C E P T IO N S28-106 .217 (1 ) , F AC
R E S P O N S E28-106 .217 (2 ) , F AC
E X C E P T IO N S28-106 .217 (1 ) , F AC
B A C K P A Y447 .503 (6 )(a ) , FS
R E S P O N S E
A T T O R N E Y 'S F E E SS T A T E M E N T
447 .503 (6 )(c ) , FS
R E S P O N S E
A T T O R N E Y 'S F E E SS T A T E M E N T
447 .503 (6 )(c ) , FS
A P P E A L T OD IS TR IC T C O U R T
447 .504 , F S
F IN A L O R D ER447 .503 (6 )(a ) , FS
O R A L A R G U M E N T
H E A R IN G O F FIC E R 'SR E C O M M E N D ED O R D ER
447 .503 (5 )(c ) , FS28-106 .216 , F AC
H E A R IN G H E LD447 .503 (5 )(b ) , FS
28-106 .209 , .210 , .211,.212 , .213 , .214 , F AC
R E S P O N D E N T 'S A N S W ER447 .503 (2 )(b ) , FS
28-106 .203
N O T IC E O F H E A R IN G IS SU E D BYA P P O IN T E D H EA R IN G O F F IC ER
447 .503 (5 )(a ) , FS28-106 .208 , F AC
S U F F IC IE N C Y R E V IEW447 .503 (2 )(a ) , FS60C C -5 .002 , F AC
C H A R G E F ILED447 .503 (1 ) , FS
60C C -5.01 , F AC
OVERVIEW OF UNFAIR LABOR PRACTICE PROCEDURE
C H A R G IN G P A R T Y 'SP R E H E A R IN G S T A T E M E N T
447 .503 (4 ) , FS28-106 .209
R E S P O N D E N T 'SP R E H E A R IN G S T A T E M E N T
447 .503 (4 ) , FS28-106 .209
C H A R G IN G P A R T Y 'SP R O P O SE D F IN D IN G S O F F A C T
28-106 .215 , F AC
R E S P O N D E N T 'SP R O P O SE D F IN D IN G S O F F A C T
28-106 .215 , F AC
R E S P O N S E28-106 .217 (2 ) , F AC
E X C E P T IO N S28-106 .217 (1 ) , F AC
R E S P O N S E28-106 .217 (2 ) , F AC
E X C E P T IO N S28-106 .217 (1 ) , F AC
B A C K P A Y447 .503 (6 )(a ) , FS
R E S P O N S E
A T T O R N E Y 'S F E E SS T A T E M E N T
447 .503 (6 )(c ) , FS
R E S P O N S E
A T T O R N E Y 'S F E E SS T A T E M E N T
447 .503 (6 )(c ) , FS
A P P E A L T OD IS TR IC T C O U R T
447 .504 , F S
F IN A L O R D ER447 .503 (6 )(a ) , FS
O R A L A R G U M E N T
H E A R IN G O F FIC E R 'SR E C O M M E N D ED O R D ER
447 .503 (5 )(c ) , FS28-106 .216 , F AC
H E A R IN G H E LD447 .503 (5 )(b ) , FS
28-106 .209 , .210 , .211,.212 , .213 , .214 , F AC
R E S P O N D E N T 'S A N S W ER447 .503 (2 )(b ) , FS
28-106 .203
N O T IC E O F H E A R IN G IS SU E D BYA P P O IN T E D H EA R IN G O F F IC ER
447 .503 (5 )(a ) , FS28-106 .208 , F AC
S U F F IC IE N C Y R E V IEW447 .503 (2 )(a ) , FS60C C -5 .002 , F AC
C H A R G E F ILED447 .503 (1 ) , FS
60C C -5.01 , F AC
OVERVIEW OF UNFAIR LABOR PRACTICE PROCEDURE
HOT TOPICS
HOT TOPICS
• Issue: Can you change or introduce new proposals at impasse?
Port Orange Professional Fire Fighters Association, IAFF, Local 3118 v. City of Port Orange, 37 FPER 99 (2011), aff’d per curiam, 86 So.3d 1121 (Fla. 1st DCA 2012) PERC ruled that reduction in pay was not a
ULP because the parties are allowed to change their positions at any point during impasse provided that the amended proposals do not touch on a topic that was not previously negotiated at the table
HOT TOPICS
Issue: Is refusal to ratify a ULP?
HOT TOPICS
International Union of Police Associations v. Sheriff of Lee County, 41 FPER 342 (2015)• Facts: The Union and employer bargained for 6 months. The
parties reached a tentative agreement but failed to reach a final agreement. The employer refused to sign the tentative agreement and refused to send the agreement to ratification vote.
• Union’s Position: The employer committed ULP because the employer bargained in bad faith.
• Employer’s Position: The employer did not commit ULP because it was attempting to maintain consistency with its policies and tentative CBA.
RECENT CASES
International Union of Police Associations v. Sheriff of Lee County, 41 FPER 342 (2015)• Issue: Did the employer engage in ULP when it
refused to sign the parties’ tentative agreement or send the agreement to ratification vote?
• Recommendation: Yes. However, the employer did not engage in ULP by maintaining a “hard bargaining” position.
City of Port Orange v. Port Orange Professional Fire Fighters Association, IAFF, Local 3118, 38 FPER 244 (2011)
• The City filed a ULP alleging that it was unlawful for the Union to refuse to sign and submit an agreement reached through impasse process
• PERC: The purpose of Section 447.403(4)(e), Florida Statutes, is to bring collective bargaining to an end at a point certain. PERC held that the refusal to submit for ratification was unlawful.
Daytona Beach Fire Rescue Local 1162, IAFF v. City of Daytona Beach, 39 FPER 28 (2012), aff’d per curiam, 121 So.3d 1058 (Fla. 5th DCA 2013)
PERC held that a ratification vote is not a condition precedent to imposition of legislatively resolved impasse issues
HOT TOPICS
International Union of Police Associations v. City of Groveland, 41 FPER 350 (2015)• Facts: The police detective received satisfactory performance
ratings before becoming involved in Union activities. She was elected Union president. On the same day, the employer opened an administrative investigation into her activities. The employer terminated the detective for alleged deficient investigations, insubordination and union solicitation.
• Union’s Position: The employer engaged in ULP because the employer dismissed the detective based on her Union activities.
• Employer’s Position: The employer did not engage in ULP because the detective was dismissed for poor performance.
HOT TOPICS
International Union of Police Associations v. City of Groveland, 41 FPER 350 (2015)• Issue: Did the City engage in ULP when it terminated
a police detective when she became union president?• Recommendation: Yes. The detective received
satisfactory performance ratings before her union involvement. The City began investigating her alleged job deficiencies on the day she became union president.
RECENT CASES
Orange County Classroom Teachers Ass’n, Inc. v. School District of Orange County, 40 FPER 323 (2014)• Facts: The CBA provided that in-service training for a non-
duty day would be compensated at $50 per day. The employer made online professional development modules available during the summer and intended to pay teachers $50 per day.
• Union’s Position: The employer engaged in ULP because the employer was required to provide the Union with notice and an opportunity to bargain.
• Employer’s Position: The employer did not engage in ULP because it was following the terms of the CBA.
RECENT CASES
Orange County Classroom Teachers Ass’n, Inc. v. School District of Orange County, 40 FPER 323 (2014)• Issue: Did the school district commit ULP when it
decided to pay teachers who took professional development courses over the summer $50 per day without giving the union notice and an opportunity to bargain?
• Recommendation: No. No ULP. This action comported with the existing terms of the CBA.
RECENT CASES
Marion Education Association v. School District of Marion County, 40 FPER 177 (2013)• Facts: The school hired “substitute teachers” to replace 19
vacant teaching positions. The school did not recognize them as covered by the CBA and paid them half as much as entry-level teachers.
• Union’s Position: The school engaged in ULP because the “substitute teachers” were indistinguishable from the teachers they replaced.
• Employer’s Position: The school did not engage in ULP because the “substitute teachers” were not covered by the CBA.
RECENT CASES
Marion Education Association v. School District of Marion County, 40 FPER 177 (2013)• Issue: Did the school district commit ULP when it
hired substitute teachers, failed to recognize them as covered under the CBA and paid them approximately half of the amount paid to entry-level teachers?
• Recommendation: Yes. The substitute teachers performed all of the duties and responsibilities of the teachers they replaced.
RECENT CASES
Levy County Education Ass’n v. School District of Levy County, 38 FPER 336 (2012)• Issue: Did the school district engage in ULP in failing
to bargain in good faith when it took the position that it did not want to include certain mandatory subjects of bargaining in the CBA?
• Ruling: No. The Union did not demonstrate a prima facie case of bad faith bargaining, premature declaration of impasse or direct dealing.
RECENT CASES
United Teachers of Monroe, Local 3709 v. School District of Monroe County, 38 FPER 288 (2012)• Facts: The school sought to modify the CBA due to budget
constraints. After several meetings, the parties finalized two letters of understanding (LOU). After notice that the LOUs may violate the Sunshine Laws, the school refused to recognize them.
• Union’s Position: Rejecting the LOUs that were agreed upon was ULP.
• Employer’s Position: The school did not engage in ULP because of the potential Sunshine Law violations.
RECENT CASES
United Teachers of Monroe, Local 3709 v. School District of Monroe County, 38 FPER 288 (2012)• Issue: Did the school district engage in ULP by
rejecting letters of understanding, which it had negotiated with the Union, after receiving notice of potential Sunshine Act violations?
• Recommendation: Under the circumstances, there was no ULP and the school district fulfilled its duty to bargain in good faith.
RECENT CASES
Palm Beach County Classroom Teachers Ass’n, Inc. v. School District of Palm Beach County, No. CA-2011-014, 2011 WL 2275546 (2011)• Facts: The CBA provided that the school could refuse to recognize
prior years of service when rehiring retired teachers. For years, the school considered prior years of service in compensating rehired retired teachers. The school decided to discontinue this practice and revert back to what was permitted under the CBA.
• Union’s Position: The school was required to engage in bargaining before making this change.
• Employer’s Position: The school was not required to engage in bargaining because it was permissible under the CBA.
RECENT CASES
Palm Beach County Classroom Teachers Ass’n, Inc. v. School District of Palm Beach County, No. CA-2011-014, 2011 WL 2275546 (2011)• Issue: Did the school district engage in ULP when it
unilaterally changed its past practice and reverted back to contractual language allowing it to pay rehired retired teachers without consideration of prior years of service?
• Ruling: No. The employer did not alter a mandatory subject of bargaining.
