Health Care Bargaining: Strategiesfor Change Without Violating P.E.R.A.

Deborah C. BrownThompson, Sizemore, Gonzalez & Hearing, P.A,

May 15, 2014

Agenda•PERC view on health care as mandatory

subject of bargaining•Most likely litigation issues when health

care is in dispute•Possible bargaining option and strategies

Health Care as a Mandatory Subject of Bargaining•“Wages, Hours, Terms and Conditions of

Employment”•An issue or subject regarding which

either party is legally obligated to bargain upon the request of the other

•Position can be insisted upon to the point of impasse and imposed through legislative body action

General Rule on Health Care•City of Dunedin, 8 FPER ¶13102 (1982)

▫Public employer’s payment of insurance premiums is term or condition of employment

▫Union entitled to notice of increase and right to bargain before implementation

▫Generalized language alone with zipper clause not a waiver

Why Health Care Bargaining in Problematic•Often at the mercy of the insurer•Plan year and CBA year may not match•Even if self insured, delays that often

accompany resolution of bargaining disputes problematic

•Challenges compounded with multiple units

•Crafting language that can be imposed and is effective is difficult

•And now we have ACA…

Likely ULP’s if Things Go South•Refusal to Bargain

▫Premature impasse declaration▫Unlawful unilateral change▫Imposition of waiver at impasse

Premature Impasse Declaration

•City of Cocoa, 30 FPER ¶295 (2004)(to sustain charge, must establish that a “reasonable period of negotiation” has not transpired, meaning CP must allege and demonstrate that the respondent refused to meaningfully negotiate mandatory subjects of bargaining by declaring an impasse before negotiating those issues)

•No deadlock required like NLRA•Recent cases suggest a stay of impasse has

become more unlikely as interim measure

Unlawful Unilateral Change

• Absent clear and unmistakable waiver, exigent circumstances, or legislative body action after bargaining impasse, changes in status quo of mandatory subjects cannot be made by public employer without providing notice to union and an opportunity to conduct meaningful negotiations, before implementing the change. The Florida School for the Deaf and the Blind Teachers United v. The Florida School for the Deaf and the Blind, 11 FPER ¶ 16080 (1985), aff’d., 483 So.2d 58 (Fla. 1st DCA 1986)

• Such unilateral changes constitute a per se violation of Section 447.501(1)(a) and (c), Florida Statutes

Imposition of Waiver at Impasse• Palm Beach Junior College Board of Trustees v. United

Faculty of Palm Beach Junior College, 475 So. 2d 1221 (Fla. 1985), aff’g in part and rev’g in part, 425 So. 2d 133 (Fla. 1st DCA 1983), aff’g 7 FPER ¶12300 (1981)(unfair labor practice for a public employer to legislate or impose a waiver of the right to bargain over changes in mandatory subjects)

• Language granting unilateral right to change would constitute a waiver

• But language proposed must actually contain a waiver (State of Florida DMS, 20 FPER ¶25102 (1994))

• And see Clay County Board of County Commissioners, 40 FPER ¶121 (2013) on switching back and forth

Defenses To ULP ChargesMost Common Defenses•Statute of Limitations •Unilateral change defenses: (1) waiver;

(2) no objective reasonable expectation; (3) legislative body action; (4) exigent circumstances

•Whether subject has been bargained•Effectiveness of demand•Financial urgency?

Statute of Limitations• Six months by statute; typically runs from

notice, not when effects felt• Central Florida PBA v. City of Casselberry, 25

FPER ¶30305 (1999)(Commission dismissed charge alleging unlawful unilateral change in promotional process and refusal to bargain impact; Commission held that, by failing to timely challenge change, which the Union knew or should have known about, change had now become “status quo” and no impact bargaining obligation remained)

Unilateral Change Defenses•Waiver•No objective reasonable expectation•Legislative body action•Exigent circumstances•Maybe financial urgency???

Precursor: Do You Have a Change?• City of Coral Gables, 9 FPER ¶14912 (1983)

▫Suggesting a change in insurer alone without change in benefits may not be sufficient to constitute unilateral change

▫But see, School Board of Palm Beach County, 9 FPER ¶14290 (1983)(answer might be different if employer is new carrier)

▫And State of Florida, 14 FPER ¶19085 (1988)(charge on change of HMO carriers where insufficient evidence of past practice and requirement for bidding, but noting some aspects of selection may be bargaining subject)

When You Bargain• Remember that during bargaining, it is lawful for a party

to propose a non-mandatory subject of bargaining. (District 2A, Transportation, Technical, Warehouse, Industrial and Service Employees Union, Affiliated with American Maritime Officers v. Canaveral Port Authority, 26 FPER ¶ 31221 (2000), aff’d., 799 So. 2d 1062 (Fla. 5th DCA 2001).)

• But if impasse resolution process used, neither party may insist that a special magistrate consider a non-mandatory subject of bargaining

• And of course a legislative body may not impose a non-mandatory subject such as a waiver of a union' s right to bargain over mandatory subjects of bargaining

Waiver After Expiration•United Faculty of Florida v. Florida State

University Board of Trustees, 34 FPER ¶159, per cur. aff’d., 9 So. 3d 622(Fla. 1st DCA 2009)

•Not an insurance case, but stands for proposition that a waiver that concerns itself with a mandatory subject of bargaining does indeed survive contract expiration

•In this case, it was the ability to grant discretionary pay increases

Impact Bargaining?•City of Fort Pierce, 36 FPER ¶ 87 (2010),

aff’d., 51 So.3d 1158 (Fla. 1st DCA 2011) ▫Waiver found in language▫Impact argument kicked out based on

pleading issue

No Objective Reasonable ExpectationSheriff of Clay County, 36 FPER ¶402 (2010)• The disjunctive test affirmed (i.e., a past

practice cannot be the status quo unless it is both unequivocal and has existed substantially unvaried for a significant period of time, and could reasonably be expected to remain unchanged)

• Commission concluded that because health benefits were not substantially unvaried for significant period of time, employees could not reasonably expect no change

More on Past Practice •DeSoto County, 13 FPER ¶18215 (1987) Pre-

contract increase in dependant health premium and employee/dependant deductibles dismissed

•Not enough to show the terms in existence at time of certification

•In absence of contract, “terms and conditions” to be viewed dynamically over time and the status quo against which change is considered must take into account past practice and past patterns of change

Expectation Analysis is Fact SpecificCity of Tallahassee, 8 FPER ¶13400 (1982), aff'd. mem., 445 So.2d 604 (Fla. 1st DCA 1984).•Unilateral change case•Increase in premiums for newly certified

supervisory police unit unlawful•City lost arguments on (1) status quo and

objective reasonable expectations based on historic treatment on unit pre-certification, and (2) waiver by ineffective demand

What Does a Waiver Look Like?

•Palm Beach County School Board, 9 FPER ¶14306 (1983)

•“During FY 83, the Board agrees to pay the full amount of the cost of health insurance for regular employees who elect individual coverage. Any increases in cost for individual coverage after June 30, 1983, shall be borne by the employee, unless contrary to the terms of a successor agreement.”

So What About Retiree Insurance Premiums?•City of Gainesville, 65 So.3d 1070 (2011)

▫Right of current employees to bargain retiree contributions now established

▫Caution must be exercised

The Polk Cases•Polk Education Association v. School

District of Polk County, 36 FPER ¶ 260 (2010), aff’d., 100 So. 3d 13 (Fla. 2d DCA 2011)

•Polk County Non-Industrial Employees Union, Local 2227, AFSCME v. School District of Polk County, 36 FPER ¶ 261 (2010), aff’d., 100 So. 3d 16 (Fla. 2d DCA 2011)

The Polk Cases•Committee participation by unions did not

carry the day, but perhaps in part because new options not considered at Committee level were interjected

•Neither case had adequate language for waiver

•Exigent circumstances not established

Other•Whether subject has been bargained

▫See City of Deerfield Beach, 38 FPER ¶89 (2011)(couched in terms of waiver but noting no obligation to bargain where you already have and the CBA contains language)

•Effectiveness of demand ▫Argued in City of Tallahassee; typically

objecting alone not enough, but for inaction to ripen to waiver, all circumstances must point to abandonment of bargaining right)

Subject Bargained•Lake Worth Utilities Authority, 10 FPER ¶

15004 (1983)▫Status quo is fixed employer contribution▫Maintaining status quo in face of premium

increase after contract expiration not a violation

▫No obligation to even notify union of change (that is only triggered by possible change in status quo or information request)

How Bad is Messing Up?•Remedy if employer changes plan unlawfully

is generally restoration of status quo•Fees can be awarded and a notice will be

required•Village of Key Biscayne, 39 FPER ¶2 (2012)

tells us interim injunctive relief unlikely▫PERC declined request by union to seek

injunction in this case because adequate remedy at law available

Bargaining Options and Strategies•Express Language (no waiver)•Waiver Options

▫Buying a Waiver▫Waiver by Committee▫Waiver by Conscious Yielding

•A Possible Nuclear Option (health care opt out)

Speaker Information• Deborah C. Browno Of Counsel, Thompson, Sizemore, Gonzalez

& Hearing, P.A.o dbrown@tsghlaw.com

Disclaimer•The information contained in these

materials is intended as an informational report on legal developments of general interest. It is not intended to provide a complete analysis or discussion of each subject covered. Applicability to a particular situation depends upon an investigation of the specific facts and more exhaustive study of applicable law than can be provided in this format.