School Bd. of Dade County v. Dade Teachers Ass'n, FTP-NEA

• Decision Date: 26 October 1982
• Docket Number: Nos. 81-2233,FTP-NEA,81-2323,s. 81-2233
• Citation: 421 So.2d 645
• Parties: 7 Ed. Law Rep. 749 SCHOOL BOARD OF DADE COUNTY, Florida, Appellant, v. DADE TEACHERS ASSOCIATION,, and Public Employees Relations Commission, Appellees. UNITED TEACHERS OF DADE, LOCAL 1974, AFT, Appellant, v. DADE TEACHERS ASSOCIATION,, and Public Employees Relations Commission, Appellees.
• Court: Florida District Court of Appeals

Page 645

421 So.2d 645

7 Ed. Law Rep. 749

SCHOOL BOARD OF DADE COUNTY, Florida, Appellant, v. DADE TEACHERS ASSOCIATION, FTP-NEA, and Public Employees Relations Commission, Appellees.

UNITED TEACHERS OF DADE, LOCAL 1974, AFT, Appellant, v. DADE TEACHERS ASSOCIATION, FTP-NEA, and Public Employees Relations Commission, Appellees.

Nos. 81-2233, 81-2323.

District Court of Appeal of Florida Third District.

Oct. 26, 1982.

Rehearing Denied Nov. 22, 1982.

Haygood & Williams and Gerald A. Williams, West Palm Beach, for appellant School Bd.

du Fresne and du Fresne and Elizabeth J. du Fresne, Miami, for appellant United Teachers of Dade.

Frank & Kelly and Mark F. Kelly, Tampa, for appellee Dade Teachers Assn.

Edward S. Stafman, Jerry W. Cheatham, Tallahassee, for appellee Public Employees Relations Comn.

Before BARKDULL, HENDRY and BASKIN, JJ.

HENDRY, Judge.

Appellants, the Dade County School Board ("School Board") and the United Teachers of Dade ("UTD"), jointly challenge an administrative decision of the Florida Public Employees Relations Commission ("PERC") finding that they committed unfair labor practices against appellee Dade Teachers Association ("DTA"), UTD's rival union.

This dispute dates back to August, 1980. UTD was the certified bargaining agent for Dade County Teachers and had an agreement with the School Board which purported to grant it the "exclusive" right to solicit and organize teachers. When off-duty teachers supporting DTA began soliciting memberships for the union in school parking lots and by posting literature on school bulletin boards, UTD representatives, with the School Board's support, removed the DTA literature and the School Board, at the insistence of UTD, prohibited the DTA-affiliated teachers from soliciting other teachers in parking lots other than at their assigned schools. A School Board memorandum, circulated to all school principals, stated in pertinent part:

Bulletin Boards

Pursuant to Article XXVIII, Section 5 of the DCPS/UTD contract, at least one (1) bulletin board shall be reserved at an exclusive place in the employee's lounge for the exclusive use of UTD for purposes of posting material dealing with union business. Also, the union (UTD) shall be allowed to post special union bulletins in the same location as is posted the employee sign-in sheet.

If there currently exists a separate, all-purpose bulletin board at a given work location on which individual employees post notices, this practice may continue. (However, minority/rival union materials may not be posted, pursuant to the exclusivity rights granted to UTD).

Solicitation

Pursuant to State Statutes and DCPS/UTD contract provisions, both the exclusive bargaining agent and individual employees have the right to solicit union membership. (Such solicitation is only permitted during duty-free time.)

UTD building stewards shall be allowed to conduct union business at duty-free times when not directly instructing students (pursuant to Article XXVIII, Section 3 of the DCPS/UTD contract).

Minority/rival union representatives are not permitted to solicit membership at DCPS work locations.

Access

The exclusive bargaining agent (but not a minority/rival union) shall be afforded access to DCPS work sites and grounds, including work location parking lots. Individual employees are afforded access to their own work sites and grounds (including parking lots), but not to other DCPS work sites unless they are at those sites on official DCPS business.

DTA filed unfair labor practice charges against the School Board and UTD under section 447.501(1)(a) and (2)(a), Florida Statutes (1979). The charges were consolidated and, following an evidentiary hearing, the PERC hearing officer issued a recommended order finding that (1) the School Board was justified in prohibiting teachers from soliciting at parking lots of other schools (on the theory they were "nonemployees" of such schools); and, (2) removal of DTA materials from all-purpose school bulletin boards was an unfair labor practice in violation of section 447.501(2)(a).

PERC's final order adopted the hearing officer's findings of fact, but determined that unfair labor practices had occurred with respect to both the bulletin board policy and the "other-school" parking lot policy. The question raised by this appeal is whether the two School Board rules are unfair labor practices within the definition of section 447.501(1)(a) and (2)(a). For the reasons set forth below, we find that both charges are well founded and affirm PERC's order.

The legislative statement of policy with respect to the Florida Public Employees Labor Relations Act provides that PERC was created to assist in resolving public labor disputes. § 447.201, Fla.Stat. (1979). PERC has developed special expertise in dealing with labor problems and is uniquely qualified to interpret and apply the policies enunciated in Chapter 447, entitling its decisions to considerable deference by this court. City of Clearwater v. Lewis, 404 So.2d 1156 (Fla. 2d DCA 1981); Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

The unfair labor practice charges against the School Board and UTD in this case stem from section 447.501(1)(a) and (2)(a), which prohibits both public employers and employee organizations (unions), or their agents or representatives, from "[i]nterfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part." In construing these provisions, we are permitted to consider Federal labor law cases interpreting similar provisions of the National Labor Relations Act, 29 U.S.C. § 151 et seq., which PERC has frequently relied upon in establishing guidelines concerning solicitation and access disputes. City of Clearwater v. Lewis, supra; Okaloosa-Walton Junior College v. PERC, 372 So.2d 1378 (Fla. 1st DCA 1979), cert. denied, 383 So.2d 1200 (Fla.1980); Pasco County School Board v. PERC, supra. Guaranteed the right to self-organize and bargain collectively by section 447.301 of the Act, public employees must also, of necessity, have the right to effectively communicate with one another regarding self-organization at the job site. Okaloosa-Walton Junior College v. PERC, supra. Relying on private sector precedent, PERC has therefore adopted policies which provide that blanket no-access rules and rules which discriminate against one union in favor of another are presumptively invalid. See, e.g., Beth Israel Hospital v. NLRB, 437 U.S. 483, 492, 98 S.Ct. 2463, 2469, 57 L.Ed.2d 370, 380 (1978); NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 76 S.Ct. 679, 100 L.Ed. 975 (1956); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945).

In Okaloosa-Walton Junior College v. PERC, supra, the court construed PELRA in light of applicable private sector precedent and held that, absent extraordinary circumstances, a public employer may not restrict the rights of employees to discuss organizational interests at the work site during the employees' nonwork time, nor restrict distribution of literature during nonwork time except where the actual work of public employees is performed. Id. at 1381. Here, the School Board's policy precluding, at all times and in all areas, employees (other than UTD agents) from one job site entering another job site for purposes of soliciting other employees for membership in an employee organization, is presumptively invalid. The burden thus was shifted to the School Board to demonstrate that the restrictions imposed on these legitimate employee organizational activities were justified. Where management attempts to restrict off-duty employee access to other employees for organizational purposes, these restrictions must be narrowly drawn to accomplish the employer's purpose without unnecessarily impinging upon employee rights. See Central Hardware Co. v. NLRB, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); NLRB v. Babcock & Wilcox Co., supra; McDonnell Douglas Corp. v. NLRB, 472 F.2d 539 (8th Cir.1973).

The "extraordinary circumstance" advanced by the School Board as justification for its restrictive access policy is the bare allegation of increased criminal activity on school campuses from outsiders entering school property. The School Board contended its solicitation/distribution policies are justified by the need to regulate access by outsiders to school campuses for security purposes. While sympathetic to the School Board's concerns for the safety of its students and teachers, we find that it has simply failed to show that a blanket no-access rule is the only means available, or even a reasonable means, of protecting this interest. No evidence was introduced to show that solicitation by employees from other campuses increased the schools' security problems. Indeed, the rule on its face permits solicitation by representatives of the majority union, indicating that the policy is designed to protect UTD's "exclusivity" rather than the safety of children, and is discriminatory in nature. (Although the School Board contends that security is hampered by unknown teachers at school parking lots, it does not suggest that UTD supporters are more easily recognizable than DTA advocates, thus undercutting "security interests" as a justification for the rule.) Additionally, while the school system has had increased crime problems in recent years, there is absolutely nothing in the record that ties these problems to school employees, much less teachers soliciting union membership, much less only teachers soliciting DTA union memberships. The presence of additional teachers in school parking lots after school hours would seem, if anything, to be a deterrent to crime. Even aside from the absence of any apparent connection between the rule and the "security goal," less intrusive means of satisfying the School Board's goals are plainly available, such as requiring all persons to check in with school officials prior to...