impasse resolution tips and tricks

1. impasse resolutiontips and tricks Presented by Mark E. Levitt, Esq. Allen, Norton & Blue, P.A.

2. Topics • Waiving the Special Magistrate • Refusal to Ratify/Self-Help • The Ruse • Tips and Tricks

3. Waiving the Special Magistrate

4. Impasse Process The Special Magistrate To Use or Not to Use? • Parties may agree to waive the Special Magistrate Hearing • Proceed directly to a hearing before the legislative body • Both parties must agree • Must be in writing

5. Impasse Process The Special Magistrate To Use or Not to Use? • Reasons to bypass Special Magistrate • Cost • Time • Number of Issues Involved • Political Reasons • Employer’s best interest is to bypass Special Magistrate in most cases • Difficult to get union to agree

6. 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

7. Current Issues Changing Proposals at Impasse

8. 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)

9. Port Orange I Facts • Parties were negotiating a successor agreement, and the City was seeking to reduce its pension costs • Reached an agreement, but it was not ratified by the Union • Parties resumed negotiations – the City realized it could not impose pension increases without employee agreement, so it proposed a 6% wage reduction instead • City declared impasse over several articles including Wages and Pensions • At the Special Magistrate hearing, the City proposed, for the first time, to reduce starting and top out pay by 6%

10. Port Orange I Facts • Parties filed several ULPs against each other, including several issues • In part, the Union alleged that (1) the City unlawfully substituted a 6% wage reduction in lieu of pension contribution increases and (2) unlawfully proposed a 6% decrease in starting pay and top out pay for the first time at the special magistrate hearing • Hearing Officer concluded that it was not unlawful to propose a 6% wage reduction in lieu of the pension reform, but the City committed a ULP by proposing the 6% decrease in starting and top out pay for the first time at the hearing

11. Port Orange I Outcome • 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 unlawful • The First DCA affirmed per curiam

12. Current Issues Self-Help

13. Self-Help • 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)

14. Port Orange II Facts • After PERC issued its order in Port Orange I, the City revised its proposed impasse agreement to the Union for ratification • The Union refused to sign and submit for ratification, claiming confusing over the effective date of the 6% wage reduction

15. Port Orange II The Unfair Labor Practice Charge • The City filed a ULP alleging that it was unlawful for the Union to refuse to sign and submit the agreement for ratification • The Hearing Officer found that the Union’s refusal was unlawful • PERC affirmed, 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

16. Daytona Beach Facts • Negotiation for a successor agreement were unsuccessful for three years in a row, the parties maintained status quo • The City declared impasse and the parties went to a Special Magistrate hearing • Union accepted recommendations on all issues, and the City rejected the recommendations on 4 issues • City Council unanimously accepted the City’s position on all remaining disputed issues

17. Daytona Beach Facts • City sent the agreement to the Union, including the agreed upon issues and legislatively resolved issues • The letter said that the Union’s failure to sign and return would be considered a refusal to send the agreement to ratification • Union did not sign or return • City implemented the agreement without a ratification vote

18. Daytona Beach The Unfair Labor Practice • The Union filed a ULP alleging that the City bargained in bad faith by imposing the legislatively resolved impasse issues without a ratification vote • Hearing Officer held that the City’s sole remedy was to file an unfair labor practice and the City could not engage in self-help or establish a time limit for the Union’s ratification

19. Daytona Beach Final Order • Reversed the Hearing Officer and held that a local government is “authorized to implement those legislatively resolved wages, hours, or terms and conditions of employment for its employees represented by a union after a special magistrate proceeding when the union refuses to submit to the employees for ratification a signed copy of a complete agreement containing the resolved articles and the tentative agreements.” • PERC receded from its “overly broad” comments in Communications Workers of America, Local 3170 v. City of Gainesville, 20 FPER 25226 (1994) that “a ratification vote is a condition precedent to implementation of legislatively resolved impasse issues.”

20. Daytona Beach Outcome • This achieved legislative intent that “lack of final resolution of a bargaining impasse… creates potential turmoil” and that the impasse procedure was designed by the Legislature “to provide an end to a potentially endless bargaining process.” City of Hollywood • Limitation – Self-Help when the Union refuses to ratify • Affirmed per curiam by the Fifth DCA

21. Current Issues The Ruse

22. 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)

23. ATU v. HART FACTS • The parties began negotiating a successor agreement in June 2010 for a contract that expired in September 2010 • After 8 months of negotiations, HART declared impasse on six articles • The parties went to a Special Magistrate hearing – recommendations were mostly favorable to the Union • The Union accepted all six recommendations, HART accepted three and rejected three others

24. ATU v. HART FACTS • Scheduled a Legislative Body hearing • Immediately prior to hearing, the Union’s attorney told HART it would agree to its proposals on the remaining issues, did not sign any TA but told the legislative body that they had reached a tentative agreement • Union conducted ratification vote – contract not ratified • HART re-scheduled the legislative body hearing, Union claimed they had to return to bargaining accoding to Amalgamated Transit Union, Local 1701 v. Sarasota County Board of County Commissioners, 36 FPER 453 (2010), aff’d per curiam, 88 So.3d 945 (Fla. 2d DCA 2012) • HART conducted legislative body hearing, Union did not attend and HART imposed all 6 issues, Union refused to send to ratification

25. ATU v. HART The Unfair Labor Practice Charges • Union filed ULP alleging that HART bargained in bad faith by refusing to resume negotiations after the failed ratification vote, by conducting a legislative body hearing instead, and by implementing the articles resolved at the hearing • HART filed ULP alleging that the Union committed an unfair labor practice by refusing to conduct a ratification vote

26. ATU v. HART Hearing Officer’s Order • HART committed unfair labor practice because it bargained in bad faith by refusing to resume negotiations after the failed ratification vote, by conducting a legislative body hearing instead, and by implementing the articles resolved at the hearing • Hearing Officer relied on Amalgamated Transit Union, Local 1701 v. Sarasota County Board of County Commissioners, 36 FPER 453 (2010), aff’d per curiam, 88 So.3d 945 (Fla. 2d DCA 2012) – when the agreement was not ratified, the parties were required to resume bargaining • Union did not commit an unfair labor practice by refusing to conduct a ratification vote

27. ATU v. HART PERC Final Order • Sarasota was not applicable – in Sarasota, parties were ordered back to bargaining because of confusion over what issues were at impasse, no confusion in this case – here there was no confusion, so there was no need to resume bargaining • Relied on City of Hollywood – The purpose of the impasse resolution process is to bring collective bargaining to a conclusion • Requiring the parties to return to bargaining would lead to a never ending cycle of negotiations • Because the Union refused to submit the agreement to ratification, HART could engage in self-help and implement the agreement

28. ATU v. HART PERC Final Order • HART did not commit an unfair labor practice • The Union did not commit an unfair labor practice – no allegation of improper motive • Pending on appeal in the Second DCA

29. Naples I FACTS • In IAFF v. Naples, the parties began negotiating a successor agreement in June 2011 for a contract expiring in September 2011 • After 13 bargaining sessions, the parties reached impasse on two issues: pension reform & safety/health article • Union refused to agree to pension reform, City would not agree to proposed changes to safety/health article • During negotiations, City offered wage increase and holiday pay to entice Union to agree

30. Naples I FACTS • City’s position at impasse was more drastic cuts than proposed during negotiations and did not include a wage increase or holiday pay • Union refused all the way up to the Special Magistrate Hearing • After City’s presentation at the Special Magistrate Hearing, the Union suddenly agreed to City’s pension proposal – did not condition its acceptance on wages or holiday pay • The City refused to accept the Union’s purported “Agreement”

31. Naples I The Unfair Labor Practice Charges • Union filed ULP alleging that City bargained in bad faith by rejecting its own proposal • City filed ULP alleging that the Union bargained in bad faith because its intent in agreeing to the City’s proposal was not to reach an agreement, but instead to derail the impasse resolution process, avoid imposition of pension reform, and perpetuate the status quo

32. Naples I The Outcome • Union bargained in bad faith • “In sum, Local 2174’s motivation in accepting the City’s pension proposal was to remove the City’s proposed pension plan from the impasse resolution process. Local 2174’s motivation was not to reach an accord with the City. Rather, Local 2174’s purpose in agreeing with the pension plan was to derail the impasse resolution process and perpetuate the status quo.” • Union “knew or should have known that the employees will not ratify the contract based on their self-interest.” • “This one instance of bad faith so permeated the entire process that it rendered the impasse resolution process meaningless.”

33. Naples I The Outcome • City did not bargain in bad faith • 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. • “The City assumed the risk that it was acting lawfully when it rejected Local 2174’s acceptance of the pension proposal.” • Second DCA affirmed per curiam

34. Indian River Facts • Parties reached impasse over health insurance - two days before the hearing, the Union agreed to the District’s proposal • The Special Magistrate hearing was cancelled, but the ratification vote failed by a vote of 226 to 3 • The District resumed the impasse process via ATU v. HART and returned to the Special Magistrate hearing, but the Union refused to participate

35. Indian River The Unfair Labor Practice • The parties filed several unfair labor practices against each other • The District alleged that the Union unlawfully agreed to the District’s insurance proposal as a ruse to thwart the collective bargaining process and intentionally avoid finality in negotiations • Union alleged that District was required to resume bargaining, not return to point of impasse after the failed ratification vote (Sarasota)

36. Indian River Outcome • The Hearing Officer concluded 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 meaningless.” • Also reiterated that Parties may return to point of impasse after failed ratification (ATU v. HART) • PERC affirmed

37. 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.

38. 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.

39. Other Cases • Naples II – Professional Fire Fighters of Naples, IAFF, Local 2174 v. City of Naples, CA-2013-054 (January 13, 2014) (not final) • In the wake of the first ULP hearing, the Special Magistrate issued an order recommending the City’s position on the pension issue because the Union had not made a presentation. Anticipating that the Union would not reject the Special Magistrate’s recommendation, and because the Union’s position remained unclear after additional negotiations, the City rejected the recommendation of its own position to give the Union an opportunity to present its position to the legislative body. The Hearing Officer found that the City’s rejection demonstrated that there was no meeting of the minds and was not unlawful.

40. Tips and Tricks

41. 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)

42. 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

43. Questions? Mark E. Levitt, Esq. 1477 West Fairbanks Ave., Suite 100 Orlando, FL 32814 (407) 571-2152 mlevitt@anblaw.com