ARBITRATION & UNFAIR LABOR
PRACTICES
FLORIDA EDUCATIONAL NEGOTIATORSMAY 15, 2014
Presented byMark E. Levitt, Esq.Allen, Norton & Blue, P.A.
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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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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
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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) [email protected]
Questions?