Marc Sugerman Power Point - Florida Educational Negotiators

Presented by
Mark E. Levitt, Esq.
Allen, Norton & Blue, P.A.
What, When, Why, and How?
The Impasse Process
Recent Cases
Tips and Tricks
Current Issues
What, When, Why, and How?
What is Impasse?
Section 447.403, Florida Statutes
Resolution of Impasses
“If, after a reasonable period of negotiation concerning
the terms and conditions of employment to be
incorporated in a collective bargaining agreement, a
dispute exists between a public employer and a
bargaining agent, an impasse shall be deemed to have
occurred when one of the parties so declares in writing
to the other party and to the commission.”
When Should We Declare Impasse?
• Timing – What is reasonable?
• Impasse is prematurely declared if the party refused to
meaningfully negotiate mandatory subjects of
bargaining by declaring impasse before negotiating
those issues. IBPO, Local 621 v. City of Hollywood, 8
FPER 13334 (1982).
• There does not need to be a deadlock in negotiations
Why Should We Declare Impasse?
• When all else fails…
• Deal-Breakers
• Difficult issues that impact the budget
• Wages
• Pension
• Health Insurance
How to Declare Impasse?
• Only one party needs to declare
• Either party may declare impasse
• Verbally at the bargaining table
• In writing to the other party
Current Issues
The Impasse Process
Impasse Process
Appointment of a Special Magistrate
• Written notice to PERC
• List of 7 names
• Strike Names
• Party who declares impasse strikes first
• What makes a good Special Magistrate?
• Strategies for striking names
Impasse Process
The Special Magistrate
To Use or Not to Use?
• Reasons to bypass Special Magistrate
Number of Issues Involved
Political Reasons
• Employer’s best interest is to bypass Special Magistrate in
most cases
• Difficult to get union to agree
Impasse Process
The Special Magistrate
To Use or Not to Use?
• Reasons not to bypass Special Magistrate
• Special Magistrate’s Recommendation may be helpful:
Neutral perspective
Public perception
Bargaining unit employees
Legislative body
• May narrow issues
Impasse Process
Factors to be considered by the Special Magistrate
Section 447.405, Florida Statutes
Comparison of the annual income of employment of the public employees in question with the annual income of
employment maintained for the same or similar work of employees exhibiting like or similar skills under the same
or similar working conditions in the local operating area involved.
Comparison of the annual income of employment of the public employees in question with the annual income of
employment of public employees in similar public employee governmental bodies of comparable size within the
The interest and welfare of the public.
Comparison of peculiarities of employment in regard to other trades or professions, specifically with respect to:
Hazards of employment.
Physical qualifications.
Educational qualifications.
Intellectual qualifications.
Job training and skills.
Retirement plans.
Sick leave.
Job security.
Availability of funds.
Impasse Process
Briefs and Recommended Decision
• What to include in your brief
• Recommended Decision
• Within 15 days after close of the hearing
• If the parties file briefs, the hearing closes when briefs
are filed
• Recommended decision addresses all unresolved issues
Impasse Process
After the Special Magistrate Issues a
Recommended Decision
• Parties must discuss recommended decision
• Each recommendation is approved, unless either party
specifically rejects it by written notice filed with PERC
• Reject within 20 calendars days after recommended
• Written Notice
• Must include statement of cause for each rejection
• Must be served on the other party
Impasse Process
• If either party rejects any recommendation, the CEO
(Superintendent) must submit the following to the legislative body
(the School Board):
• Copy of the Special Magistrate’s recommended decision
• The Superintendent’s recommendations for settling the disputed impasse
• Must file within 10 days and serve on the union
• Only make recommendations on issues that remain in dispute
• The Union also must submit its recommendations to the School Board
and the Superintendent
Impasse Process
Legislative Body Hearing
• Public hearing
• Parties must explain their positions on the rejected
recommendations of the Special Magistrate
• Give parties equal time
• Statute sets no minimum or maximum time limit
• Legislative body must resolve the disputed issues
• May occur at the same meeting
• Must consider public interest
Impasse Process
Post-Legislative Body Hearing
• Parties shall draft an agreement including issues agreed to by the
parties and issues resolved by the School Board
• Parties do not literally have to meet and draft in person
• One party can draft and the other can approve
• Must be signed by School Board and Union
• Ratification
• Superintendent must submit to “public employer” (i.e. the School Board)
• Union must submit to all bargaining unit employees
Impasse Process
Post-Legislative Body Hearing
• If ratified, the Agreement is implemented
• If not ratified by either or both parties
• Status quo on issues not at impasse, so agreed upon changes do
not go into effect
• Legislatively resolved issues are “imposed” – go into effect as of
the date the issues were resolved for one (1) year
• Some issues cannot be imposed
• Duration clauses
• Preambles
• Recognition clauses
Recent Cases
Changing Proposals at Impasse
• Issue: Can you change or introduce new proposals
at impasse?
• Port Orange I – 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)
Port Orange I
• PERC ruled that the 6% reduction in starting and top out 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
bargaining table
• PERC affirmed the Hearing Officer’s conclusion that proposing a 6%
wage reduction in lieu of a pension contribution increase was not
• The First DCA affirmed per curiam
• Issue: Union refuses to ratify
• Port Orange II – City of Port Orange v. Port Orange
Professional Fire Fighters Association, IAFF, Local
3118, 38 FPER 244 (2011)
• 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)
Port Orange II
• Option 1 – If the Union refuses to ratify, file a ULP
• The City filed a ULP alleging that it was unlawful for the Union to
refuse to sign and submit an agreement reached through impasse
• PERC held that Union’s refusal was unlawful, citing to City of
Hollywood v. Hollywood Municipal Employees, Local 2432, AFSCME,
468 So.2d 1036 (Fla. 1st DCA 1985) that the purpose of Section
447.403(4)(e), Florida Statutes, is to bring collective bargaining to
an end at a point certain
Daytona Beach
• Option 2 – Self-help when a union refuses to ratify
• PERC held that a ratification vote is not a condition
precedent to implementation of legislatively resolved
impasse issues, receding from Communications Workers
of America, Local 3170 v. City of Gainesville, 20 FPER
25226 (1994).
• Affirmed per curiam by the Fifth DCA
The Ruse
• Issue: Union agrees to adverse proposals to remove them from the
impasse process
• Amalgamated Transit Union, Local 1593 v. Hillsborough Area
Regional Transit, 39 FPER 175 (2012), on appeal docketed at
2D12-6033 (Fla. 2nd DCA)
• Naples I - Professional Firefighters of Naples, I.A.F.F. v. City of
Naples, 39 FPER 329 (2013), aff’d per curiam, unpublished at 2013
WL 6869087 (Fla. 2nd DCA 2013)
• Communications Workers of America v. School District of Indian River
County, 40 FPER 32 (2013)
• PERC held that the parties may resume the impasse process after a
failed ratification vote and are not required to return to collective
bargaining, relying on City of Hollywood (the purpose of the
impasse process is to bring collective bargaining to a conclusion
• 2nd DCA reversed on appeal
• Hollywood’s commentary re: bringing bargaining to an end at a point
certain only applies to 447.403(4)(e)
• Basically affirmed Sarasota – must return to bargaining pre-legislative
body if the agreement is not ratified by either party
• Motion for Rehearing Pending
Naples I
The Outcome
• PERC held that the Union bargained in bad faith because its motivation in
accepting the City’s pension proposal was to remove the pension plan from
the impasse resolution process. The Union’s motivation was not to reach an
accord, but to derail the impasse resolution process and perpetuate the
status quo. The Union know or should have known that the employees would
not ratify the contract.
• Because the Union acted in bad faith by purportedly accepting the City’s
proposal, the parties remained at impasse and the City did not act
unlawfully by continuing the impasse resolution process.
• Second DCA affirmed per curiam
Indian River
• PERC held that the Union unlawfully agreed to the District’s Insurance
proposal to thwart the bargaining process
• “The CWA agreed to the District’s health insurance proposal knowing
with virtual certainty that the unit employees would not ratify the
proposal and with the intent of avoiding finality in the bargaining
process and extending the status quo indefinitely. This conduct
constitutes a failure to bargain in good faith because it makes a
mockery of the impasse resolution process and renders it
• Also reiterated that Parties may return to point of impasse after
failed ratification (ATU v. HART)
Other Cases
• City of Hialeah v. International Ass’n of Fire Fighters,
Local 1102, 38 FPER 111 (2011)
• After over two years of negotiations and impasse
proceedings, a Special Magistrate sided with the City
on every issue at impasse, but the Union did not file any
rejections. Ratification failed by a vote of 177 to 1
and after ULP proceedings concluding the Union had
not bargained in bad faith, the parties were forced to
go back to negotiations.
Other Cases
• International Ass’n of Fire Fighters, Local 2622 v. City of
Jacksonville Beach, 39 FPER 283 (2013)
• Over the course of collective bargaining negotiations, the
City declared impasse three times, and each of the first two
times, the Union “accepted” the City’s proposal before the
special magistrate, and the agreement was overwhelmingly
rejected by the bargaining unit. After the third time, both
parties filed ULPs. PERC held that the Union did not
bargain in bad faith, but took note of its recent statement in
ATU v. HART and cautioned that its dismissal of this case
should not be read “to countenance a never-ending cycle of
negotiations.” It’s decision was based on a lack of evidence
showing bad faith.
Other Cases
• Naples II – Professional Fire Fighters of Naples, IAFF,
Local 2174 v. City of Naples, 40 FPER 284 (2014)
• In the wake of Naples I, the City rejected a special
magistrate’s recommendation of its own proposal,
anticipating that the Union would not. PERC held that
the City did not commit an unfair labor practice, even
though it rejected its own position. The parties did not
reach a meeting of minds regarding the pension issue,
and therefore the issue was still at impasse
Tips and Tricks
Tips and Tricks
• Package Proposals
• During Negotiations
• Throughout Impasse Process
• Ratification Letter (Daytona Beach)
• Require response
• Set deadline
• Self-help if Union refuses to conduct ratification
• Return to point of impasse after failed ratification (Port
Orange, HART)
Tips and Tricks
• Do not accept a bad faith acceptance (Naples, Indian River)
• Rejecting your own proposal (Naples 2)
• If Union will not reject an adverse recommendation
• Very limited circumstances – works better with a package proposal
• Change position at impasse (Port Orange, Naples)
• Rescind concessions
• One year contract
Mark E. Levitt, Esq.
1477 West Fairbanks Ave., Suite 100
Orlando, FL 32814
(407) 571-2152
[email protected]