School Bd. of Escambia County v. Public Emp. Relations Com'n, CC-245

• Decision Date: 14 October 1977
• Docket Number: No. CC-245,CC-245
• Citation: 350 So.2d 819
• Parties: 96 L.R.R.M. (BNA) 3052 SCHOOL BOARD OF ESCAMBIA COUNTY Florida, Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION and the Escambia Education Association, Respondents.
• Court: Florida District Court of Appeals

Page 819

350 So.2d 819

96 L.R.R.M. (BNA) 3052

SCHOOL BOARD OF ESCAMBIA COUNTY Florida, Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION and the Escambia Education Association, Respondents.

No. CC-245.

District Court of Appeal of Florida, First District.

Oct. 14, 1977.

Michael W. Casey, III, of Muller & Mintz, Miami, Louis F. Ray, Jr., Pensacola, for petitioner.

Curtis L. Mack, Gerald A. Williams, and Thomas W. Brooks, Tallahassee, Richard H. Frank and John J. Chamblee, Jr., of Frank & Meyer, Tampa, for respondents.

MILLS, Acting Chief Judge.

Petitioner, School Board of Escambia County, Florida (Board), seeks review of an order of the respondent, Public Employees Relations Commission (PERC), which found that the Board had engaged in unfair labor practices in violation of Section 447.501(1)(a) and (c), Florida Statutes (Supp.1974), by (1) engaging in surface bargaining, (2) photographing lawful union activities, and (3) refusing to bargain in good faith on dues deductions and threatening its employees with one lump sum dues deduction. PERC ordered the Board to cease and desist from its unfair labor practices and to reinstitute dues deductions at the cost of five cents per card per month. The Board contends that PERC erred in finding that the Board had engaged in unfair labor practices. We will address each finding separately.

FAILING TO BARGAIN IN GOOD FAITH BY "SURFACE BARGAINING".

On 22 April 1975, the respondent, Escambia Education Association (EEA), was designated as exclusive collective bargaining representative for a unit consisting primarily of teachers. On 23 April, the EEA and the Board met formally for the first time and EEA presented a proposed contract of 123 pages. Meetings of 13 and 20 May produced an agreement on the recognition article and interim dues deductions. No bargaining was conducted from 20 May until 1 July due to the actions of the Board. During that period of time, the EEA placed over twenty-two phone calls to the Board's agents and the chief negotiator's associates requesting that the chief negotiator (Dr. Moses) return the calls. Subsequent bargaining sessions were also hindered by the Board's actions. Although the parties had agreed to certain negotiating guidelines, the Board chose to ignore some of the guidelines and required that certain procedures not included in the guidelines be followed. During the period from 1 July to 23 July, it was found that the Board was unprepared for approximately seven of the nine meetings and late to four of the meetings. The EEA declared a statutory impasse on 23 July.

At the 1 July meeting, the Board announced that it considered a significant majority of the items in the EEA's proposed contract to be nonbargainable. These included school calendars, class size, lunch duty, promotion and transfer procedures, dismissal and layoff procedures, teachers' aides, extra time for extra duties, and filling of vacancies. At no time during the course of negotiations prior to impasse did the Board waiver in its definition of non-negotiability, nor did it offer to bargain about the effects of its "non-negotiable" policies on the members of the unit. The Board also insisted that all proposals were part of a total "package" and could only be accepted or rejected along with the rest of the package. During the July sessions, the Board submitted language on grievance procedures which was accepted by the EEA, and representatives of both the EEA and the Board initialed the proposal. The EEA presented proposals on sabbatical and military leave that were accepted by the Board; however, Dr. Moses would not sign or tentatively agree to those sections because to do so would "break his package". The Board refused to formally agree to its own counterproposals on retirement and insurance during maternity leave because of its package concept.

After statutory impasse was declared, the parties met with a mediator approximately five times from 13 August through 26 September. At the first meeting, the Board's team was approximately two hours late (Dr. Moses never arrived), and was not prepared. The mediator therefore adjourned the session almost immediately. Dr. Moses also did not show up for a mediation session scheduled on 23 September. On the morning of 26 September, the Board presented a proposal touching on all issues it considered negotiable. The EEA was unable to accept the package and declared itself ready to go to the special master.

Between 26 September and 30 October, two special masters recused themselves as prejudiced by ex parte communications received from the Board. At the 23 October meeting, the EEA presented a significantly reworked proposal which included identical language from nine of the Board's last proposals; however, Dr. Moses refused to tentatively agree to those sections because he would not "break his package" and again placed the 26 September proposal back on the table and refused to modify it.

At the beginning of November, EEA attempted to schedule two meetings with the Board. The Board did not appear at either meeting. The parties agreed to a marathon bargaining session from 28 November to 30 November. Agreement was tentatively reached subject to ratification by the Board and the employees in the bargaining unit. The Board approved the contract, but it was rejected by the employees. In the tentative agreement, salary was reduced by 3.6 percent and none of the items the Board considered non-negotiable were mentioned, such as: dismissal of employees, layoff, tenure, evaluation, scheduling of planning period, and class size, among others.

PERC concluded that whether an employer has bargained in good faith must be determined by the totality of the circumstances rather than single acts standing alone. PERC found that the Board's stance throughout negotiations that certain major issues were non-negotiable, its insistance on a "total package agreement", its failure to attend scheduled meetings and habitual lateness, and its failure to provide the EEA with relevant information, were inconsistent with the Board's duty to bargain in good faith. PERC therefore concluded that the Board had violated Section 447.501(1)(c). We agree.

The Board asserts that this matter is merely one of "hard bargaining". It points out that the EEA could not bring pressure upon the Board to make concessions because the EEA could not strike, and argues that it is not surprising that the Board used this "power advantage" at the bargaining table. We do not believe that the constitutional and legislative prohibitions against strikes by public employees were ever intended to give public employers a power advantage over their employees in contract negotiations. Strikes are prohibited to protect the public, not to circumvent the rights of public employees to meaningful collective bargaining with their employer.

PHOTOGRAPHIC SURVEILLANCE.

For a period of two or three days in August, members of the EEA picketed the Board's central office building after having obtained a parade permit from the City of Pensacola. When the picketing began, the Board's Director of Employee Relations directed that photographs of the picketing be taken. Two photographers took pictures that were given to the Director who testified that the photos were taken for a historical record he was compiling on labor relations. An assistant principal, a member of the Board's bargaining team, stated that an additional reason for...