Duval County School Bd. v. Florida Public Employees Relations Commission

• Decision Date: 11 January 1978
• Docket Number: FEA-AF,AFL-CI,No. FF-489,R,FF-489
• Parties: 97 L.R.R.M. (BNA) 3121 DUVAL COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Duval Teachers United,espondents.
• Court: Florida District Court of Appeals

Page 1244

353 So.2d 1244

97 L.R.R.M. (BNA) 3121

DUVAL COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Duval Teachers United, FEA-AFT, AFL-CIO, Respondents.

No. FF-489.

District Court of Appeal of Florida, First District.

Jan. 11, 1978.

Dawson A. McQuaig, Frederick J. Simpson and William Lee Allen, Jacksonville, for petitioner.

Jane Rigler, Tallahassee, Anne M. Parker, Miami, William Powers, Tallahassee and Leonard A. Carson, North Miami, William H. Maness, Jacksonville, for respondents.

MILLS, Acting Chief Judge.

Petitioner, Duval County School Board (Board), seeks review of an order of the Public Employees Relations Commission (PERC) finding that the Board had committed an unfair labor practice in violation of Section 447.501(1)(a) and (c), Florida Statutes (1975).

The complaint issued by the Acting General Counsel of PERC alleged that the Board had refused to bargain collectively in good faith by engaging in surface bargaining which included, but was not limited to, the following acts:

(1) insisting throughout the course of negotiations that certain "mandatory subjects of bargaining", such as employee transfer, discipline and discharge, seniority, teacher preparations, sick leave bank, class size, summer school assignment, field trips, disruptive student policy, student discipline and attendance registers, were not negotiable and refusing to bargain on these issues;

(2) releasing to the press a salary proposal which had never been submitted to the Duval Teachers United (DTU) at the bargaining table; and

(3) stating, through its negotiator, that teachers had lost a 6.25% Raise because their union forced negotiations to an impasse.

The Board answered the complaint by denying the allegations and asserting various affirmative defenses directed to its refusal to negotiate on the subjects termed "mandatory subjects of bargaining". The case was tried before a hearing officer, a recommended order was issued, and exceptions to the recommended order were filed by the Board. After considering the record, briefs, and oral arguments, PERC entered its amended order finding the Board guilty of violating Section 447.501(1)(a) and (c).

The parties met on 22 April 1976 to begin collective bargaining. A few days before the meeting Superintendent Sang had publicly attacked Bates, the union's chief negotiator, as an "outside agitator and hired gun" and accused the DTU of "coming to the table to pick the pockets of the taxpayers". At the first session Bates referred to the statement and mentioned that both sides should refrain from making such attacks in the future because mutual trust was essential to the negotiation process. Negotiations then commenced with a discussion of ground rules.

The first ground rule proposed was: "Each negotiating session shall be scheduled at a mutually agreeable date, time and place which shall be determined at each preceding session." Bates expressed reservations about daily scheduling because of another commitment to negotiate an agreement in St. Louis, Missouri, but finally agreed with the proposed scheduling rule. The parties agreed to meet on 28, 29 and 30 April.

On 28 April the language of the ground rules was finalized. Although approximately 80% Of the DTU proposals had been submitted by that date, the Board's chief negotiator, Andrew Knight, refused to bargain on those proposals until 10 May because the ground rules stated that the parties' final proposals were to be submitted by 10 May and all of the DTU's proposals had not been submitted.

DTU submitted its remaining proposals on 10 May; the Board submitted five proposals to DTU on 11 May. At the 12 May meeting, the Board stated that the five proposals constituted its entire response to DTU's package. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by the Board and placed proposals on the agenda (including Discipline and Discharge, Tenure, Personnel Files, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer) for the following day.

On 13 May DTU attempted to negotiate on Discipline and Discharge, Personal Rights, Academic Freedom and Transfer but was informed that these subjects were "inherent management rights" and non-negotiable. The Board's counter-proposals on the other agenda items tracked the language of the previous year's contract. Bates tried to set a calendar for future sessions, reminding the Board of negotiations in St. Louis, but Knight refused because the ground rules stated that scheduling must be determined at the preceding meeting. Bates attempted to secure a commitment that the Board would meet on Saturday, 15 May, since Bates had a plane reservation for 14 May that he would cancel if negotiations could be held on Saturday. Knight responded that it would "probably be okay" but that he couldn't make a firm commitment until Friday because the ground rules precluded such a commitment. The parties agreed to meet on Friday, 14 May.

Near the close of the 14 May meeting, the Board declined to meet on Saturday, 15 May. It was then too late for Bates to depart on his scheduled flight. The next session was held on 19 May.

During the preceding meetings, the attempts by DTU to place those items labeled "non-negotiable" by the Board on the agenda were frustrated by the Board's insistence that the agenda had to be "mutually agreed to". The ground rule stated: "Agendas for each session shall be established at the preceding session." The DTU pointed out that the rule specifically left out the words "mutually agreed on", and that either party could place anything on the agenda that it wished to discuss; however, the Board continued to prepare the agenda, continued to leave off the agenda the items DTU wished to discuss, and refused to discuss those items at the negotiating sessions because they were not on the agenda.

The 19 May meeting ended with the DTU saying that it would return to the bargaining table when the Board's counter-proposal package was received.

On 28 May Knight and the President of DTU agreed over the phone to resume bargaining on 3 June. The parties met on 3 June and the Board presented the expired contract as its counter-proposal package. Knight stated that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been made pursuant to the ground rules and no "mutually agreed to" agenda had been established. The parties agreed to meet on 8 June.

On 8 June Bates advised the Board's team that DTU was unavailable for negotiations from 19 June to 22 June because of schedule conflicts.

Thereafter the parties met daily from 14 through 19 June. During this period one agreement was reached on a "salesman" article. Throughout this period the Board contended that the issues of Summer School Assignment, Student Discipline, and a Fair Treatment Clause were either "inherent management rights" or that they were matters which were non-negotiable because they "infringed student rights". Other items such as Disruptive Student Policy, School Nurse, and Evaluations were also labeled non-negotiable by respondent. During the 18 June session, the Board's team stated that if DTU did not meet on Saturday, 19 June, the Board might have to file an unfair labor practice charge. Bates cancelled his conflicting meeting and the parties met again on 19 June.

The entire discussion on 19 June centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put those policies into the contract. Bates informed the Board that DTU could meet Wednesday, 23 June, and inquired whether respondent would be available. Knight responded that the Board's team would be available. The DTU team, believing that a meeting was scheduled for 23 June, arrived for the session at 9:00 A.M. The Board's team did not appear.

Pursuant to a phone conversation between the DTU president and Knight, a meeting was scheduled for 24 June. The DTU president testified he advised Knight that DTU's team wanted to commence serious bargaining at that session; however, a memo received from Knight stated that the 24 June meeting was for the sole purpose of setting a date, time and agenda.

In accordance with the memo, the Board refused to bargain at the 24 June session insisting that to do so would violate the ground rules since no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour and official reconvened after agreement pursuant to the ground rules.

The Board's second salary counter-proposal was submitted on 1 July. (The first counter-proposal on salary was included in the Board's "package counter-proposal", i. e. the old contract, submitted 3 June.) It was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday, 26 June.

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