Sch. Dist. of Indian River County v. Fla. Pub. Employees Relations Comm'n

• Decision Date: 15 June 2011
• Docket Number: No. 4D09–3086.,4D09–3086.
• Citation: 269 Ed. Law Rep. 418,64 So.3d 723
• Parties: SCHOOL DISTRICT OF INDIAN RIVER COUNTY, Florida, Appellant,v.FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Indian River County Education Association, Local 3617, American Federation of Teachers, Florida Education Association, AFL–CIO, Appellees.
• Court: Florida District Court of Appeals

64 So.3d 723

269 Ed. Law Rep. 418

SCHOOL DISTRICT OF INDIAN RIVER COUNTY, Florida, Appellant,

v.FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Indian River County Education Association, Local 3617, American Federation of Teachers, Florida Education Association, AFL–CIO, Appellees.

No. 4D09–3086.

District Court of Appeal of Florida, Fourth District.

June 15, 2011.

Usher L. Brown and Erin J. O'Leary of Brown, Garganese, Weiss & D'Agresta, P.A., OR, for appellant.

Tobe M. Lev of Egan, Lev & Siwica, P.A., OR, for appellee, Indian River Education Association Local 3617, American Federation of Teachers, Florida Education Association, AFL–CIO.Sharon E. Cromar, Tallahassee, for appellee, Public Employees Relations Commission.DAMOORGIAN, J.

The School District of Indian River County, Florida (“District”) appeals the final order of the Florida Public Employees Relations Commission, (“Commission”) in which the Commission found that the District engaged in an unfair labor practice by refusing to impact bargain with the Indian River County Education Association, Local 3617, American Federation of Teachers, Florida Education Association, AFL–CIO (“Union”) over a new District policy requiring teachers to submit their lesson plans via the internet using the eSembler program or similar method of electronic transmission.¹ We affirm the Commission's final order concluding that the District committed an unfair labor practice by refusing to impact bargain over the District's decision. However, we reverse that part of the Commission's order requiring the District to pay the Union's reasonable attorney's fees and costs.

Before the start of the 2008 school year, the District sent notice to all secondary school administrators advising them that, beginning in 2009, all secondary school teachers would be required to submit their lesson plans via the internet using eSembler. Previously, teachers had been required to submit lesson plans to school administrators in any manner they chose. What followed was a series of letter exchanges between representatives of the Union and the District.²

The letter exchange began with the Union expressing opposition to the District's new requirement and making a demand to bargain over the impact of the policy.³ In its several responses, the Union pointed out a number of areas that would be substantially impacted from the imposition of the District's new directive:

1. ESembler is relatively user unfriendly and time consuming. It does not permit a teacher to remain on the same page while saving the document, requires excessive scrolling, and prints out in a font which is difficult to read. Further, many teachers still need additional training on eSembler, which will result in additional work.

2. Teachers who, in order to comply with the directive, changed from hand writing their lesson plans to electronic format are placed at a disadvantage. For example, there would be no access to lesson plans during power outages or at times when the system is offline.

3. Hard copies of lesson plans are easier to access and amend in the classroom. As teachers find it necessary to print out lesson plans for use in the classroom, the very reason to create electronic documents is defeated. Further, supplies of paper and printer cartridges are limited and in some cases not available.

4. Not all teachers have access to computers at home. Therefore, their at-school workload would increase as additional hours would be spent at school in order to file their lesson plans electronically.

5. Use of an electronic format does not allow the recipient to provide feedback.

6. Failure to comply might result in disciplinary action.

The Union contended that the impact on teachers' terms and conditions of employment was substantial, thereby necessitating impact bargaining under Chapter 447, Part II, Florida Statutes (2008).

The District responded by noting that both the requirement that teachers prepare a lesson plan and the manner by which they were to perform this task were management prerogatives under section 447.209, Florida Statutes (2008). Moreover, during the course of the letter exchanges, the District agreed to allow teachers to submit their lesson plans using an electronic format of their choice. For instance, teachers were now permitted to submit their plans through Microsoft Word or scan handwritten lesson plans into “PDF” format and then email them to administrators. The District did not “regard the pending lesson plan requirement as an appropriate subject of impact bargaining” in part because “[the Union] ... failed to show any direct and substantial effect upon the terms and condition[s] of its membership's employment stemming from the pending lesson plan requirement.” Ultimately, the District demanded more “specific information” in connection with the actual impact on the bargaining unit members. The Union refused to provide this information and no impact bargaining occurred.

The Union filed an unfair labor practice charge alleging a failure to impact bargain. The Commission's general counsel found the charge to be legally sufficient and the matter proceeded to an evidentiary hearing. The District answered the charge, arguing, inter alia, that the Union failed to “show how the requirement for filing a lesson plan electronically instead of on paper causes ‘direct and substantial effects upon existing wages, hours, terms and conditions of employment caused by and foreseeably resulting from the implementation’ of the change at issue.” (quoting Hillsborough Classroom Teachers Ass'n v. Sch. Bd. of Hillsborough Cnty., 7 FPER ¶ 12411, 907 (1981), aff'd., 423 So.2d 969, 970 (Fla. 1st DCA 1982)).

The matter proceeded to hearing before a hearing officer. At the hearing, the Union entered into evidence a series of letters it had sent to the District identifying the following effects of the new policy: (1) not all teachers had been trained on eSembler and would need to be trained if the policy was implemented; (2) the implementation of the policy would require teachers to use equipment, such as printers and cartridges, to which all teachers did not have access; (3) the plan would increase some teachers' at-school workload since they did not have a computer at home; and (4) the implementation of the policy would result in possible discipline for teachers who failed to electronically submit their lesson plans. Additionally, the Union presented the testimony of several Union officers and teachers in the bargaining unit, who provided corroborating testimony showing the substantial nature of these impacts.

At the close of the evidence, the hearing officer issued a recommended order finding that the Union had fulfilled all the necessary requirements in order to require the District to engage in impact bargaining and that the District's failure to do so constituted an unfair labor practice as defined in section 447.501(1)(a) and (c), Florida Statutes (2008). In reaching this conclusion, the hearing officer identified the following “specific impacts upon teachers' workload and training that foreseeably resulted from the [Board's] decision to require lesson plans to be electronically submitted:” (1) “the need for adequate training opportunities for all teachers on the different methods in which they could electronically submit their lesson plans;” (2) “the need to provide the necessary equipment at all schools to implement the various alternatives for electronically submitting lesson plans;” (3) “the need for equivalent schools to standardize the content required for electronic submission of lessons plans;” (4) “the effect of requiring electronically submitted lesson plans on teachers' workloads, schedules, classroom budgets and compensation and ways to minimize any negative effects thereto;” and (5) “the disciplinary consequences of failing to submit lesson plans electronically.” The District filed exceptions to the recommended order which were rejected by the Commission. Ultimately, the Commission concluded that the evidence established that the Union had identified impacts on wages, hours, terms and conditions of employment, and that the impacts were substantial. This appeal follows.

When an appeals court is reviewing an administrative order, the interpretation by the agency or commission of its governing statutes and rules will be upheld unless clearly erroneous. Pershing Indus., Inc. v. Dep't of Banking & Fin., 591 So.2d 991, 993 (Fla. 1st DCA 1991); Palm Beach Junior Coll. Bd. of Trs. v. United Faculty of Palm Beach Junior Coll., 425 So.2d 133, 136 (Fla. 1st DCA 1982). Moreover, findings of fact will be reviewed by the competent substantial evidence standard. § 120.68(10), Fla. Stat. (2010). Competent substantial evidence is “ ‘evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.... [S]uch relevant evidence as a reasonable mind would accept as adequate to support a conclusion.’ ” J.S. v. Fla. Dep't of Children & Families, 18 So.3d 1170, 1175 (Fla. 1st DCA 2009) (quoting Perdue v. TJ Palm Assocs., Ltd., 755 So.2d 660, 665 (Fla. 4th DCA 1999)); see also Pub. Emps. Relations Comm'n v. Dade Cnty. Police Benevolent Ass'n, 467 So.2d 987 (Fla.1985).

The District's first argument is that the charge failed to make a prima facie case and was premature because the policy had not been implemented when the charge was filed. In order to establish a prima facie violation, the charge must “include the names of the individuals involved in the alleged unfair labor practice, and the time and place of occurrence of the particular acts giving rise to the dispute.” Nat'l Conference of Firemen & Oilers v. City of Riviera Beach, 27 FPER ¶ 32155, 374 (2001). It also must “identify specific impacts” on wages, hours, or terms and conditions of employment resulting from the change at issue. Id. A “factually deficient charge cannot be cured by resorting to the supporting...