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ARBITRATION &
UNFAIR LABOR
PRACTICES
FLORIDA EDUCATIONAL
NEGOTIATORS
MAY 15, 2014
Presented by
Mark E. Levitt, Esq.
Allen, Norton & Blue, P.A.
Topics
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Arbitration
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Unfair Labor Practices
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Recent PERC Cases
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Current Issues
Arbitration
Selecting an Arbitrator
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THE MOST IMPORTANT STEP!
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How does the CBA define the selection process?
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FMCS, AAA, internal grievance hearing
Panel or individual
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Striking Entire Panel
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Striking Arbitrators
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Does the CBA allow for mutual agreement?
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Research arbitrators
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Arbitrators know practitioners & practitioners know arbitrators
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The Arbitration Hearing
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Educate the Arbitrator
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What happened?
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Frame the issue
Present Documents
Examine Witnesses
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Why is the case significant?
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Unique attributes of Schools
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The Arbitration Hearing
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Don’t pick a fight with arbitrator
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Pick your battles with the Union
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Documentation is key
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Don’t overlook arbitrability or procedural issues
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Timely?
Properly stated?
Follow procedures in CBA?
Bifurcate?
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Briefs
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Submit a brief with legal and evidentiary support for your
position
Legal Support
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Labor Arbitration cases
Standard of Review
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Preponderance of evidence
Clear and convincing
Evidentiary Support
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Tell your side of the story
Address weaknesses in your case
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“Arguably Arbitrable”
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Pensacola Junior College Faculty Ass’n v. Pensacola Junior College Bd.
of Trustees, 50 So.3d 700 (Fla. 1st DCA 2010)
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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.
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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.
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When in doubt, proceed to arbitration but argue arbitrability
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Deferral
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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
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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
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Administrative Hearing pursuant to section 1012.33, Fla. Stat.
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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
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“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
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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)
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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
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Marion County School Board, 130 LA 193 (Abrams,
2012)
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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
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Recent Cases
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Orange County, Florida, 131 LA 1111 (Smith, 2012)
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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
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Recent Cases
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School District of Escambia County, 131 LA 384
(Wood, 2012)
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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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Current Issues
Unfair Labor Practices
Employer ULPs
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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
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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
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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
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Participating, instigating, or supporting a strike (penalties)
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Instigating or advocating support for Union from students
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Common ULPs
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Duty to Bargain in Good Faith (employer or union)
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Unlawful unilateral change (employer)
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Refusal to discuss grievances (employer or union)
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Denial of representation (union)
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Employee must raise
Breach of duty of fair representation (union)
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Employee must raise
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ULP Process
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File ULP Charge with PERC
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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
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Summary dismissal
If sufficient, hearing officer appointed
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ULP Process
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Answer
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May file 20 days after Notice of Sufficiency
Other interested parties may intervene
Prehearing orders
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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
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Evidentiary hearing conducted by PERC hearing
officer to resolve issues of material fact
Telephone hearing
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Send exhibits in advance
Opening Statement
Witnesses
Documentation
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ULP Process
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Proposed Recommended Orders
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Include proposed findings of fact & conclusions of law
Discuss recommended rulings on procedural matters
Argument based on PERC precedent
Hearing Officer’s Recommended Order
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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
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Exceptions to Hearing Officer’s Recommended Order
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Usually 20 days after, deadline set forth in HORO
Exceptions to findings of fact and conclusions of law
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Request Oral Argument
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Final Order from PERC
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Appeal
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Recent Cases
Recent Cases
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Orange County Classroom Teachers Ass’n, Inc. v.
School District of Orange County, 40 FPER 323
(2014)
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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
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Manatee Education Ass’n v. School Board of Manatee County,
62 So.3d 1176 (Fla. 1st DCA 2011).
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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:
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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
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United Teachers of Monroe, Local 3709 v. School District
of Monroe County, 38 FPER 288 (2012)
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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
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Palm Beach County Classroom Teachers Ass’n, Inc. v.
School District of Palm Beach County, 2011 WL
2275546 (2011)
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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
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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)
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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
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Levy County Education Ass’n v. School District of Levy
County, 38 FPER 336 (2012)
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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
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Marion Education Association v. School District of Marion
County, 40 FPER 177
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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.
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Questions?
Mark E. Levitt, Esq.
1477 West Fairbanks Ave., Suite 100
Orlando, FL 32814
(407) 571-2152
mlevitt@anblaw.com