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HomeMy WebLinkAboutMinutes of Meeting Impasse Hearing - August 1, 2012 MINUTES OF MEETING DANIA BEACH CITY COMMISSION IMPASSE HEARING WEDNESDAY, AUGUST 1, 2012 —6:00 P.M. — 8:00 P.M. 1. Call to Order/Roll Call Mayor Flury called the meeting to order at 6:00 p.m. Present: Mayor: Patricia A. Flury Vice-Mayor: C. K. "Mac"McElyea Commissioners: Anne Castro Walter Duke Bobbie H. Grace City Manager: Robert Baldwin City Attorney: Thomas J. Ansbro City Clerk: Louise Stilson Labor Attorney: Jim Cherof 2. Explanation of Impasse Public Hearing Process by City Attorney City Attorney Ansbro provided an overview of the issues and what is expected of the Commission this evening. 3. Impasse Hearing 3.1 Presentation by City Manager and Manager's Bargaining Team Jim Cherof, City Labor Attorney, provided a binder with information materials to the members of the Commission, which is attached to and incorporated into these minutes, and summarized the contents therein. Attorney Cherof commented the Impasse is a monetary issue as is the manager's proposal, which requires some level of fiscal restraint moving forward in terms of wages and benefits. Through the use of presentation boards, he illustrated the difference in the compensation package of veteran employees and those hired after 2006 when the City went to FRS. He noted the basis for the City Manager's package proposal has components that include pension and health insurance reform, and presented data comparing surrounding cities' employee contributions to health care costs. Attorney Cherof said the City initially proposed that the employees pick up 15% of the cost for insurance, however the City Manager may compromise to 10% and further recommends the City retains the right to modify levels of benefits annually. Attorney Cherof spoke about the conversion of accrual of annual leave time to Paid Time Off (PTO) hours and the reason behind this proposal. An alternative is now to keep the level of Sick and Vacation the same and eliminate the Personal and Safety days so that there is a reduction of the number of hours accumulated and a corresponding cash value savings. Sick leave would be a use it or lose it concept above a 480-hour cap and a payout of 50% if the employee leaves the City. There would be no annual 40-hour payout option for vacation leave. Regarding Disciplinary Appeals, Attorney Cherof noted the City Manager now agrees to retain the procedure,which is what the Union was seeking. Regarding Pension Plan Reform, Attorney Cherof noted the Union and City Manager accept the Magistrate's recommendation to eliminate DROP. The City Manager recommends reducing the City's pickup of the employee contribution by 3% and reducing the multiplier from 3.0 to 1.6, which would match the FRS multiplier. Regarding Bereavement Leave, the City Manager now agrees to keep the status quo. Regarding the Safety Day, the proposal is to eliminate it in favor of maintaining the level of accrual for sick and vacation leave. Regarding Employees Charged with Felony, the employee should not be permitted to come back to work or be off from work at the City's expense if it involves a crime against the City or a coworker. If the employee is later found not guilty or the charges are dropped, the City Manager proposes all time will be restored. Regarding Wages, the City Manager proposes a 2% base wage increase if the medical savings can be achieved through the annual 10% employee contribution and there is the ability to modify level of benefits annually. If not, wages should be frozen. Regarding Term of Agreement, the City Manager recommends ending the agreement on September 30, 2013, as the original end date of September 30, 2012, makes no sense. Regarding Hours of Work and Overtime, some employees work 37.5 hours, but get paid for 40 hours. For consistency, all employees should be treated the same; the past practice should be eliminated and all employees work 40 hours. 3.2 Presentation by AFSCME Representative(s) Jill Hanson, AFSCME Attorney, said the Union did provide its acceptances of the Magistrate's recommendations to the Labor Attorney for the City and she provided a copy to the Commission, which is attached to and included in these minutes. She commented that the City and Union have had a good history over the years and noted the Union accepted most of the Magistrate's recommendations. Attorney Hanson further commented that Union employee wages are in line with other cities and over the years, the Union has given concessions to the City, such as agreeing six years ago to Minutes of Impasse Hearing 2 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. give up the defined benefit plan for future employees. This year, the Union agreed to increased health insurance costs and to pay 10% of the cost of the plan. Future increases would be bargained and the Union is willing to participate in the negotiation of future levels of health benefits. Regarding Wages, Attorney Hanson noted the Union agrees with the Magistrate's recommendation for a 3% across the board increase beginning October 1, 2012. Regarding Leave provisions, the Union accepts the Magistrate's recommendation to keep the status quo. They will consider some type of merged paid time off system, but object to employees forfeiting money they accrued in lieu of time off. The City has encouraged employees to bank the hours and now wants to punish them for not using their time. Regarding Employees Charged with Felony, the Union questions why this is an issue. If it ever became an issue, the City has the authority to do what it needs to do under the contract according to the just cause provisions. Terry Peterson, President of Local 3535, Council 79, read from the Magistrate's recommendation. She asked the Commission to rule in favor of the Magistrate's recommendations and also not eliminate the DROP. Larry Nadeau, Vice-President of Local 3535, Council 79, addressed prior concessions made by the Union and the cost savings provided to the City. He questioned if the City received a letter from the insurance company pertaining to a rebate check. Mr. Nadeau noted the City cannot afford performance evaluations and COLAs. Attorney Hanson noted the Union is not in agreement on the DROP because the proposal is not detailed; it does not provide the costs nor address people who are currently in it. Ending the DROP today cannot be done without input from the Pension Board. Attorney Cherof acknowledged that concessions were made six years ago, however, now we need to tighten our belts because of today's economy. He suggested the Union's recommendations were not fair, noting the Magistrate recommended eliminating the DROP and the City Manager and Union agreed to this. Attorney Cherof described the process going forward in that those issues resolved tonight will be plugged into a written contract, which will be submitted to the employees for ratification and to the Commission for approval. Pension reform will be by ordinance, and will include an analysis by an actuary and detailed language on how it will be done. City Manager Baldwin noted this is not a personal issue as the employees are the lifeblood of the City government. He is trying to create financial stability; it is now the Commission's decision to do what is best for the taxpayers and employees of the City. The budget, built around the proposed millage rate, includes the City Manager's recommendations concerning this particular hearing. The Commission will set the proposed millage rate later tonight and should ensure it is not set too low. Minutes of Impasse Hearing 3 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. 1 3.3 Public Hearing—Comments by the Public Robert Chunn, 118 Phippen Road, spoke in support of the employees. He felt they deserve to be treated with respect and it is time for the Commission to do the right thing. Darren Green, City employee, noted the employees have one job title, but unlike employees in other cities,perform more than one job. He asked the Commission to vote with integrity. Corinne Lajoie, City Planner, noted she is not an eligible union employee nor is she management; she is considered a veteran employee and is in the old pension, but does not get four weeks of vacation. She said accruals are a set of benefits agreed upon and have been earned, and felt changing them from today going forward may be acceptable, but that going back is not. Roxanne Knight spoke in support of the employees, noting what they have is theirs and should not be taken away. Louis Brown, City employee, commented he has been here since 1987 and has never received a 5% increase. He said he has worked outside of his classification, his wages were capped long ago, and therefore he receives no more raises. He questioned the fairness of eliminating the DROP as he has five more years until retirement. Craig Urbine, 1211 Stirling Road, addressed the employee time off benefit as compared to the private sector. He agreed with the employees on this benefit as it would be unfair to take away something they have already earned. Ahmad Thomas, City employee, questioned what happened to Dania Beach as it is not what it used to be. Nick Lupo, Code Compliance Manager, commented he is in the same category as Ms. Lajoie, and noted how many hats he wears and has not taken any sick days since he started. Anthony Johnson, 25 year employee, asked the Commission to be fair. Don Hanson, 32 year employee, said he will retire in 58 days and it would be unfair to lose his accruals at this time. Thomas Heavey, 4403 SW 24th Avenue, noted the Commission has a difficult decision to make tonight. He spoke in favor of the employees and letting them enjoy the benefits they were offered when they started. 3.4 City Commission Deliberations and Resolution of Impasse Issues Commissioner Grace addressed her "loyal employees of the City", noting we have a network of loyal, dedicated employees second to none. She wants them to have the same insurance caveats she received from her employer and does not want the budget to be at the expense of the Minutes of Impasse Hearing 4 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. employees or the taxpayers. Commissioner Grace said she is on both sides, she is a person of compassion, and will vote with the employees tonight. Commissioner Duke noted this is a balancing act between the rights and fair treatment of the employees. As elected officials, the Commission is concerned with the long-term financial viability of the City, particularly with regard to health and pension costs, and of the employees. He would like the Commission to avoid taking away existing benefits and prefers to transition some of these items into our budget. Vice-Mayor McElyea noted he is pro-union, the employees deserve anything that was promised, and he will support the employees if he can. Mayor Flury agreed with the Commissioners' comments. Insurance Commission discussion ensued. Commissioner Castro motioned to approve a 10% employee contribution with the City consulting with the Union on the level of benefits, implementing a corporate wellness program, and new retirees will contribute 50% toward insurance with a 100% contribution when the retiree becomes Medicare eligible; seconded by Commissioner Grace. The motion carried on the following 5-0 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Pension Plan Reform Commission discussion ensued. Commissioner Castro motioned to eliminate DROP effective the final day of this contract (September 30, 2013); seconded by Commissioner Duke. The motion carried on the following 4-1 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace No Commission discussion ensued. Commissioner Duke motioned to accept the Magistrate's recommendations to keep the status quo for Pension Plan Reform Items #1 and #3; seconded by Commissioner Grace. The motion carried on the following 3-2 Roll Call vote: Minutes of Impasse Hearing 5 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. Commissioner Castro No Vice-Mayor McElyea No Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Annual Leave Commission discussion ensued. Commissioner Castro motioned to eliminate the safety day and personal days. Motion died for lack of a second. Commissioner Castro motioned to eliminate two of the total of four safety and personal days. Motion died for lack of a second. Further discussion ensued regarding the current total number of days of leave per year. Commissioner Castro motioned to keep the status quo on annual leave accrual; seconded by Commissioner Grace. The motion carried on the following 3-2 Roll Call vote: Commissioner Castro No Vice-Mayor McElyea No Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Accruals Commissioner Grace motioned to keep the status quo. Motion died for lack of a second. Commission discussion ensued. Commissioner Castro motioned to reject the City Manager's recommendation "to keep the maximum accrual of sick time at 480 hours, but end annual payout of sick time that is above the maximum accrual of 480 hours"; seconded by Commissioner Grace. The motion carried on the following 5-0 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Commissioner Castro motioned to cap sick leave payout for new employees when employee resigns or retires to 50% of accrued sick leave; seconded by Commissioner Duke. The motion carried on the following 4-1 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea No Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Minutes of Impasse Hearing 6 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. Safety Day Commissioner Castro motioned to eliminate the safety day. Motion died for lack of a second. Employees Charged with Felony Commissioner Castro motioned to agree to the City Manager's recommendation that an employee charged with a felony against the City, the taxpayers, or a co-worker, will be suspended without pay and if later exonerated or the charges dropped, the employee will earn that pay back as well as their time off; seconded by Vice-Mayor McElyea. The motion carried on the following 4-1 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace No Wages Commission discussion ensued. Commissioner Castro motioned to end COLA effective September 30, 2012; seconded by Commissioner Grace. The motion carried on the following 5-0 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Commissioner Castro motioned to approve a 2.5%wage increase effective October 1, 2012; seconded by Commissioner Grace. The motion carried on the following 5-0 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Hours of Work and Overtime Commissioner Castro motioned to approve flex time with advance approval from the department manager, provided it is not done on a daily basis and does not impact the workflow; seconded by Commissioner Grace. The motion carried on the following 5-0 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes Minutes of Impasse Hearing 7 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. Term of Agreement Commissioner Castro motioned that the Agreement will end on September 30, 2013; seconded by Commissioner Duke. The motion carried on the following 5-0 Roll Call vote: Commissioner Castro Yes Vice-Mayor McElyea Yes Commissioner Duke Yes Mayor Flury Yes Commissioner Grace Yes 4. Adjournment Mayor Flury adjourned the meeting at 8:29 p.m. ATTEST: CITY OF DANIA BEACH V LOUISE STILSON, CMC �Pols Fl- PATRICIA A. FLURY CITY CLERK ��° _ MAYOR Approved: August 14, 2012 A.(ED 1 Minutes of Impasse Hearing 8 Dania Beach City Commission Wednesday,August 1,2012—6:00 p.m. CITY OF DANIA BEACH SPECIAL CITY COMMISSION MEETING PUBLIC HEARING WEDNESDAY, AUGUST 1, 2012 —6:00 p.m. RESOLUTON OF DISPUTED IMPASSE ISSUES CITY MANAGER'S PROPOSALS CITY MANAGER'S NEGOTIATION TEAM James A. Cherof, Labor Counsel Colin Donnelly, Assistant City Manager Jackie Beauzil, Human Resources/Risk Manager Mark Bates, Finance Director • CITY OF DANIA BEACH AND AFSCME FLORIDA COUNCIL 79 INDEX OF CITY IMPASSE DOCUMENTS Pages Description 1-4 CITY MANAGER RECOMMENDATIONS TO RESOLVE IMPASSE 5-10 REJECTION OF MAGISTRATE'S RECOMMENDATIONS 11-38 MAGISTRATE'S RECOMMENDATIONS 39-101 CITY'S WRITTEN SUMMATION H:\GDV CLIENTS\DANIA BCH 6I4\110492\Dania Beach Indexdac • • Date: July 9,2012 ^�t . To: City Commission Froip: Robert Baldwin,City Manager &W GvPl Subject: CityManagerss Recommendation to Resolve Itrtpasse I have proviouslyprovided you with a copy of the-Special Maglstrato's Reaomortendation•Aecisi0u dated Juice 11; 2012. Qh 3'ttite 29,2012,th�o•C�ity�1eti its rojec ion.of tlte•Special Wgis' te's decision,4 cQpy of Wbicll is. attached). In the body of the rejection,Jo Gift'set forth its justification for the rejection. The Union has pot. filed objections to the MWs#ate,'s recommendations. In sntieipation of the public-hearririg the•City Commission mast conduct and in accordance w%th.the.rules governing the•resoludon of'impmse, I submit the folloiV recommendation to resolve the remafnbng impassp issues: no- insurance CURRENT Employees should Tlaave rejected fine M4strate's .' -EMPLOYEES poiitn'bute to their. recommendation bntl aD see room for some. l.5%employee insurance(Union also movement,if the Commission seeks to soften contribution "d� the Impact of eniployees having to pick up same ofthe cost of their Iftsuranoe. Employees to pay: $76A0 for smgle One compromise would be to.have•employees M9.66 for single+1• pick up 10"/o rather than IN 4the cost of V0.90 for family insurance, Status quo on remainder The 10'/o figure would result In first year cost, of Article 32 sharing per the Magistrate's recommended figuros,but by using a percentage the -NEW UTMEES employee contribution would fluctuate along i. Now Retirees with the City contribution if rates continue to bontHbution= rise. 50°(o to cost of n-glth Insurance I further recommend the City retain the right to 2. For New retirees, modify level of benefits annually.The ability increase to 100% to ma c changes to coverage is a keystone tp when retiteo controlling rates. becomes 1VSedioare,allgible:� My recontimendatleu on insurance is linkod to a wage freeze for the coming fiscal.year. _ I recomm6ud increased contribution rates for now retirees(tbdse that rotim after implementation ofthase proposal)from 33.3Vq to 50%.There would be no Impact on atirrent rotirses,City contribution should and when employoe becomes Modicard eligible.- 1 of 4 l i R�IlrJE'x ;;'(1rPr1 > (l►SA " ][5 :.' �ys r r O -Ilk f• n't a i �4.. �sl'riil/�'�, �� n.b:. O S,Y :��„ `.�.�,�� R�'G701!'IlV[E1XDA1!IO�TS.. •�i VMT111f�- '�"� . Dis,ciplina'ry Overhaul disciplinary Maintain Status Quo. I now reconimencl A "eals rocess we accept the 1VIagrstr teuo 's � recommendation-and maintain the status Pension Plan City seeking pension A.acep$Magistrate's recommendation Ri krm reform to lower City eliminations of DROP. on cost. 1. Status quo 1, Lower City pick I have rejected the Magistrate's other up of employee recommendation s. 0 ctiatribution 3l0 from 16.08%to 13.06%(with I recommend the City Commission proceed corresponding with lowering City pick up of employee increase of oontrihtion by 3510 and also reduce the employee's multiplier flom 3.0 to 1.6 to match FRS. actual 2. Eliminate DROP effective contribution 8/1/12 from 3.66%to 3. Status quo 6.66% 2. Eliminate DROP, 3. Reduce from 3.0 -to L6 to match FRS . •. Paid Time In lieu of separate Status quo I have rejected the Magistrate's Off banks of time for recommendations and still fee(it is the right Vacation days,Sick Took issue with conversion time to shift to PTO as outlined in the City's days, Safety days, factor proposal. and Personal days, combine all leave However,if the Commission feels that this into one:category shift is better delayed,the:current sick and called"Paid time vacation benefits should be modified as noted . Off'orPTQ for Below. short. Sick Leave • Shift to one bank Status Quo If the Commission prefers to defer a shift to of paid time off PTO,these changes to Sick Leave accrual,use, (PTO) and payout are recommended: •. All current leave combined Into • Deep the maxii-nurn accrual of sick one pool of time at 480 hours,but end annual available time payout of sick time that is above the called Paid Time maximum accrual of480horfrs Off(PTO)- Cap sick leave payout when employee • Convert current resigns or retires to 50%of accrued time at eithor,75 sick leave rate.(Example:if employee has • 100 hours of paid time not,Its Converted to 75 hours of PTO). --------------------------- 2of4 2 TSTR AR'lirlG XGI�i3p2OPSAFL`:': =2S>iM2 �ED Its T`Y'VIAIiArGR S • 4�r. CbMMEUuA'`T (JIYS • Employees wil! �" ..RECOlYl1�E'NDAT>tO�VS .. earn J hour of PTO for every -hour actually worked, • 50%payout on termination with. 500 hour cap Bereavement Shift to PTO Status quo -On further consideration,l recommend that we Leave maintain the status quo on the use of bereavement leave. Safety Day Shift to.�fo Status quo Eliminate safety da Vacations Shift to PTO Status quo If the Commission prefers to defer a shift:to PTO,these changes to Vacation Leave accrual,use,and payouf are recominended: + Eliminate 3 personal days-and 1 safety day,which will have the effect of decreasing vacation accruals by 32 hours per year. • Discontinue.benefit of converting 40 hours of accrued vacation leave to cash eaoh calendar year. +► Members must take 40 hours of • continual vacation leave once per calendar y par. Employees Employee suspended Status Quo I recommend a modified proposal:'An Charged with without pay but can Employee,charged with a felony involving a Felony use accrued leave crime against the City or a co-worker will be suspended without pay but can-use accrued leave Wages • Add 2%increase End COLA,merit and/or. End COLA,merit and/or bonus effective base wage; bonus 9/30/12 9/30/12. • wages clause tied to end ofoontract 3%base wage increase 2%base wage increase 10/111-2 but if no p.eriQd to effective-10/l/12* .agreement on insurance,wage freeze until emourage a 9/30/2013 and use wage sav` gs to off-set prompt finish to insurance negotiations • Pay topped out employees either - $750 or$1000. • City wage proposal tied to pension reform ro osal-- .S of 4 3 • Term of One year One year ending 9/30/1.2 but I recommend that the term of tile Agreement Agreement. Agreement he also provided for a'Wage end 9/30/13. increase for 2012-13 Hours of All employees Status quo Reject Magistrate's recommendation. Work and work 40 hours. Overtime Eliminates past Adopt City proposal with possible exclusion of practice where the flex time provision.This change'Will some employees eliminate the past practice of skipping breaks work 37,5 but get to leave prior to the end of the regular work paid'for 40. day.' g rk • City can y occasionally flex work schedule to avoid overtime. • Language for stand-by pay needs to be placed-back iri the contract see article 12.7 of -existing contract A copy of my recommendations Will be forwarded to the Union. The statute requires that the Union also send you its recommendations to resolve the impasse issues. Together,my recommendations.and the Union's recommendations,are.the only communications to you.that can be made.as the Commission is now in the • "insulated period".The insulated period has been described by the Public Employees Relations Commission as follows: ' In order for a legislative body to maintain o'neutral position and avoid any appearance of impropriety between the'time.of rejection (6/29/12} of all or Inv part of the special master's reeommtnded decision and convening of the legislative both bearing, all parties at lmpasse and the representatives guest refrain frow coriimunicating with members +sif`the-legislative body. This insulated period is designed to regulate . communications addressed to the legislative body. 4 of 4 4 STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMM[SSION CITY OF DANIA BEACH, Public Employer and Case No. SM2012-011 AFSCME COUNCIL 79, Employee Organization. CITY OF DANIA BEACH'S REJECTION OF SPECIAL MAGISTRATE'S RECOMMENDED DECISION In accordance with the provisions of§447.403,Florida Statutes, the City of Dania Beach responds to the recommended decision of Special Magistrate Martin 0. Holland received by.the • City on June 12,2012 as follows: Article 41—Term of Agreement The City rejects the Magistrate's recommendation that the agreement end September 30, 2012. The delay of the impasse proceeding and the belated Special Magistrate recommendations will not pexxnit ratification votes until late July or early August.resulting in a collective bargaining agreement which, under the terms of the recommendation,would end less than two months later. The recommendation is also inconsistent with the Magistrate's recommendation that for a.wage increase effective October 1, 2012. The wage article recommendation suggests the wage rate that would be in effect untif September 30,2013 which is indicative of a two year agreement. • Article 22—Group Insurance ' The City rejects the Special Magistrate's recommendation. A fixed dollar contribution by employees as opposed to a percentage based contribution is short-sighted and fails to address the need for employee participation tied to.rate increases and positions the parties for another . dispute regarding contribution the next time rates are increased. The fixed dollar approach shifts the burden of increases only to the City. Article 35—Wages ' The City rejects the Special Magistrate's recommendation. The three percent(3%)base . wage increase is too generous coming off several years of merit and bonus wage increases which the Union has obtained in large part by .a pattern of delayed bargaining. The Special Magistrate's recommendation rewards the Union for dilatory conduct and ignores fiscal realities. Article 3—Management lb hts The City accepts the recommendation of the Special Magistrate with the exception of the inclusion of language regarding just cause discipline. The City's proposal regarding discipline provides a more workable approach to handling disciplinary action. The'Special Magistrate's rationale is biased in favor of the Union and Iegally flawed. Article 4 Union Rights The City accepts the recommendation of the Special Magistrate although the Magistrate's rationale is flawed. Articles 25,'26.27,28,29 (various leaves) The City rejects the recommendations of the Special Magistrate. The Magistrate has failed to recognize that the value-of acciued banks of leave time has been inflated by wage . increases that, as previously noted, have been extended because of the Union's dilatory and -2- surface bargaining. The City's proposal regarding conversion to paid time'off, which the Magistrate notes is not necessarily opposed by the Union, represents a contemporary and workable means of providing leave time to employees, the.use of which would be largely controlled by the employee. The large bank of accrued time-is a clear indication that accrual rates are excessive, City's Proposal-Union's Dues Deduction The City accepts the recommendation of the Special Magistrate although the rationale is flawed. City's Proposal—Employees CharL-ed With Felony Crime The City rejects the recommendation of the Special Magistrate. At the bargaining table, the City indicated the willingness to limit suspensions without pay to felonies associated with • crimes against the City or co-workers. The Special Magistrate suggests that an employee • charged with a crime to be immediately terminated is flippant and inconsistent with any standard of disciplinary action. City's Proposal—Collective Baraainina The City accepts the recommendation of the Speciat Magistrate but the Magistrate's rationale is flawed.Florida law does not mandate that a public employer pay a Union bargaining team member to attend bargaining. City's Proposal--Disciplinary Appeal The City rejects the recommendation of the Special Magistrate. The Magistrate's rationale is flawed.and demonstrates a lack of understanding of Florida law. -3 - City Proposal—Pension Plan The City accepts the recommendation of the Special Magistrate to. eliminate DROP effective August 1, 2012,.but rejects the, balance of the Magistrate's recommendations. The totality of the Magistrate's recommendation fails to address the need for pension reform and the fiscal peril to the pension system if.action is not taken:'at this time. Article 33—Seniority The City withdrew its proposal and agrees to the status quo.. Article 28—Holiday The City accepts the recommendation of the Special Magistrate but finds the rationale superficial and flawed. Article 37—Layoff and Bumping The City accepts the recommendation of the Special Magistrate but rejects the rationale which is flawed and demonstrates an old school pro-Union/anti-management bias. City Proposal—Contract Constitutes Entire Agreement The City accepts the recommendation of the Special Magistrate. City Proposal—Collateral Document The City accepts the recommendation ofthe Special Magistrate. Article 12—Workweek Breaks and Overtime The City rejects the recommendation of the Special Magistrate. The Magistrate failed to address the issue regarding the few bargaining unit employees who are permitted to Ieave work early while all other employees work through the full business day. The City's language cures that disparity by ending the past practice. -4- - 8 City Proposal—Probationary Period The City accepts the recommendation of the Special Magistrate. City.Proposal—Employee Evaluations The City rejects the recommendation of the Special Magistrate.. The rationale suggests that performance evaluation could be subject to the grievance process which is contrary to past practice and not representative of custom or norm. Further, the City's wage proposal provides for a base wage increase not tied to evaluations and therefore the process of evaluation remains a managerial prerogative. City Proposal—Prevailing Rights The City rejects the recommendation of the Special Magistrate, This issue is tied to-the "Hours of Work" article.and could be equally addressed.by City proposed language for that • article. The Magistrate's recommendation reflects a misunderstanding regarding the City's proposal which only seeks to address past practices that are monetary in nature. The best practice with respect to the rights and benefits of the employees is to spell out those monetary , benefits in the body of the collective bargaining agreement. The City's proposal is.not an attempt to extinguish all past practices and a review of the City's proposal(which the Magistrate apparently did not read)makes that clear. - 5 9 Other Issues: To the extent not accepted, all other recommendations of the Special Magistrate are hereby rejected. J. S A. orida Bar .291 6 SHANA H.BRIDGEMAN Florida Bar No. I0300 Goren,Cherof,Doody,&Ezrol,P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale,FL 33308 . Tel: (954)771-4500/Fax: (954)771-4923 CERTIFICATE OF SERVICE I HEREBY CERTIFY that and a copy fiunished by U.S.mail to Mary Jill Hanson;Esq., 3012 Ocean Bluffs Blvd., Apt. 306, Jupiter, FL 33477 Edward Moore,- Field Staff Representative II; AFSCME Florida Council 79, 99 NW 183A Street, #224, North Miami, FL 33169 and Manny Anon, Esq.,Deputy General Counsel,AFSCME Florida council.79, 99 NW 183`d Street,#224,North Miami,FL 33169 this.49 day of June,2012. AMES A. C R Florida Bar No.29 6 SHANA H.BRIDGEMAN Florida Bar No. 10300 Goren,Cherof,Doody,&Ezrol,P.A, 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale,FL 33308 Tel: (954)771-4500/Fax:.(954)771-4923 -6- 10 MARTIN O. HOLLAND ATTORNEY AT LAW :*ll(312)-497-0909 4935 CenomarDrive 9109 S.Sawyer mail:'medmoth@earthhnk.net Naples,FL 34112 Evergreen Park,IL 60805 (239)530-1983 (239)530-1984 fax June 11, 2012 James A. Cherof,Esquire Goren, Cherof,Doody&Exrol,P.A. 3099 East Commercial Blvd., Suite 200 Fort Lauderdale,FL 33308 Manny Anon,Esquire Florida Public Employees Council 79,AFSCME 99 NW 183ra Street, Suite 224 Miami Gardens,FL 33169' RE: SM2012-011;Impasse • City of Dania Beach and AFSCME Council 79 Fee for Services Dear Advocates: Pursuant to Florida Rules, please find the enclosed Recommended Decision. A fee of $5,698.00 is due and evenly split between the parties. Please remit your prompt payment to my Florida address. My tax identification number is 327-40-5119. Thank you. Payable by Union $2,849.00 Payable by City $2,849.00 Sinc Martin.O.Holland • enclosure SPECIAL MAGISTRATE'S CASE CLOSING RENORT M- /� , SPECIAL MAGISTRATE �`✓� /'t '� CASE NO.. S • EMPLOYER: BARGAINING UNIT: TYPE OF BARGAINING UNIT: v ' LOCATION (County): k 6 4,' 1. If the case was resolved without a recommended decision being.issued, complete this portion: A. Case resolved by: agreement , waiver of SM proceedings B. Stage at which case was resolved: preheadng , during hearing post hearing 2. Did you have any prior experience with these parties? No , Yes—Briefly specify on back of form. 3. Case Issues: ) 2 .4) , 5) 6) 7) -Please list any additional issues on reverse side f form. 4. Did you.initiate settlement discussions or attempt mediation in this case? • No- Yes.T If yes,with what result: Agreement , Narrowing of issues , No change in positions , Other _ Comments: 5, TIMING OF CASE ACTIVITIES: A. Date of appointment letter: B. Hearing date: — ��'/� C. Number of hearing hours: f y : 5 Date you closed hearing:g If not at hearing close please explain: E. Date Recommended Decision issued: /r If outside required.15 days please explain: F. Date Recommended Decision was received per return receipt which you received from parties) Employer: �-- /2- �1� — Bargaining Unit: 4--,12,ZZ PERC FORM Page 1 of 2(5/01) • 12 e ared?Yes No at whose expense? r' 06- Were post he briefs pr c4 p p .� . 7. Was a verbatim hearing transcript made?Yes , No at whose expense? 8. Was a tape recording matte?Yes , NOX at whose expense? 9. Were the parties represented by attorneys? f n- �+ Non-Attorney: . Bargaining Unit:Attorney: r f A Y: Employer: Attorney: /ram,. Non-Attorney: 10. Were expert witnesses used`by the parties? Bargaining Unit: Yes: %% , No: Employer: Yes.: , No: 11. Costs of special master case: .SPECIAL MAGISTRATE'S COMPENSATION Number of hearing days: at$ J.100 equals: $ d Study and preparation days: .at$ O equals: $ � �Q Travel Time (days): at$ equals: $ . • Subtotal: $ �� SPECIAL MAGISTRATE'S EXPENSES Transportation:/0lArl--a $ `^ Hotel; $ Meals: $�(2z Stenographic: $ Telephone: $ � Postage: $ Id - Other(specify): CT $ - S�U Total-Cost of Case: $ 12. Comments on any unusual aspects of this case: (If additional space is needed please continue on back of form) PERC FORM Page 2 of 2-(5101) 13 STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION SPECIAL MAGISTRATE,MARTIN O.HOLLAND In the Matter of Impasse ) between ) City of Dania Beach, Florida, ) City,Petitioner, ) Case No. SM'2012-011 and ) Florida Public Employees Council 79, ) American Federation of State,County and ) Municipal Employees,AFL-CIO, ) Union. ) Discussion and Recommended Decision Appearances: For the Employer: James A. Cherof,Attorney at Law Goren, Cherof,Doody, &Ezrol,P.A. For the Union:, Mary All Hanson,Attorney at Law • Manny Anon,Jr.,Director AFSCME Council 79 Date of Impasse: January 25,2012 Date of Appointment: February 28,2012 Dates of Hearing: April 26,2012 and May 2,2012 Date Hearing Closed: May 21,,,2012 Date of Decision: June 11,2012 In accordance with Section 447.201 and 447.403 of the Florida Statutes and Florida Administrative Code Rule 60CC-3, Martin O. Holland was appointed as Special Magistrate on February 28,2012 to hear the facts of the impasse described herein;then to . P offer. his Recommended Decision pursuant to 'the authority granted to .the Special Magistrate by the Florida Statutes. City of Dania Beach declared impasse on January 25, 2012. On February 29, 2012, the parties were advised of suggested hearing dates. The -parties mutually.agreed to the hearing date of April 26, 2012 during a pre-hearing conference call. _ The hearing commenced at 9 a.m. and continued to 6 p.m. A . subsequent hearing on May 2 2012 was needed to complete q g . y ,, mpl to a fair hearing.. A transcript was not made of the hearing. Both parties were offered liber al submiss ions d .. g p ns an testimony. The hearing was deemed closed on May 21, 2012 at the exchanging and • receiving of the parties'post-hearing briefs. 1 14 Objective The Special Magistrate's objective is to recommend a decision to the parties that would be acceptable in free collective bargaining, that meets the parties' realistic expectations and that the-recommendations are'justified under the. Florida Statute criteria for such . decisions. The' Special Magistrate's jurisdiction and authority. is limited by law. Jurisdiction is exercised only to the point of making a comprehensive recommended decision. The Recommended Decision, under the. Florida Statute, is a .careful and conscientious balancing of various factors in public employment, the current economic climate, and the reality of other public employment contracts with industrial norms and generally accepted labor practices. 'By statute, the legislative body must approve any comprehensive contract with appropriate funding or impose its economic terms for one • year. The goal is nick ratification b both parties ursuant t o y pa. p o the statutory scheme. Background The City of Dania Beach (City) entered into a Collective Bargaining Agreement (CBA) with AFSCME Local 3535,-Council 79, Florida Public employees.AFL-CIO (Union). Their last CBA expired on.September 30, 2008. Negotiations in 2009, 2010, and 2011 failed to result in a new CBA. Most recently, in 2011, the City and the Union each changed their lead negotiators, which resulted in considerable proposal rewrites, withdrawal of previously agreed to language, and new concession demands. From November 1, 2011 through January.25, 2012, eight (8) negotiating sessions were held until the City's lead negotiator declared impasse. The City is seeking economic and non- • economic concessions across twenty-one (21) various contract issues. The Union is 2- 15 offering some concessions and.givebacks.but objects to the City's unjustified, heavy- handed and overwhelming economic concessions. The City is mature and financially stable with a 29,000 populist. The City is well situated next to a major airport hub and has. numerous. commercial, residential, and sporting facilities. The City weathered the recent .economic downturn very well and all its economic signs are pointing to a substantial recovery for Dania Beach as well as for the State of Florida As of April 2012, a realtor group reported a 17% increase in Broward County residential real estate values. Though the City revenues show a 6% decline, the City hired ten(10) new bargaining unit employees over the past two (2) years. The City has about 110. employees of which 75 are bargaining unit employees. The Union has approximately 38 members out o£the 75 bargaining unit employees. The Union was •Pp g g certified by PERC on January 21,2004 (Case No,UC-2003-012). Significantly,the City recently reached an agreement with the Broward County Sheriffs' Office to provide police and fire service to the City. Apparently, the City and Union had a good working relationship for the past eight (8) years and only two (2) grievances were filed. The protracted CBA negotiations from 2009 were encouraged'by the status quo doctrine and the fact that bargaining unit employees received merit and bonus pay on their anniversary date pursuant to an automatic matrix system. Now, in summary, the City wants to close the automatic wage enhancements, modify the alleged.libetal pension plan, redefine and cut paid time off,shift healthcare costs to the employees, and have greater control over its employees. The Union objects to these proposals. 3 16 Discussion A Special Magistrate is a neutral or, arbitrator with broad labor experiences that the parties mutually select. The Special Magistrate is similar to a fact finder or judge pursuant to the Florida Statute. The impasse procedure is governed by statute because .public employees are prohibited from•striking, but Florida's legislature recognizes a legitimate role for labor unions .and collective bargaining. Public employees and employers who bargain to impasse and then utilize the impasse procedure should expect a fair and reasonable outcome of their dispute. It has long been held, in the private sector,. that arbitration between employers and'unions brings "industrial.peace" and is quid pro quo for a no strike provision in a collective bargaining agreement. Textile Workers Union v. Lincoln Mills, 353 U.S. 443,453-55 (1957) Most states have public employee • bargaining statutes andmainy states have impasse procedures with binding impasse . decisions- or impasse decisions with special provisions. Admittedly, many states have been attacking such laws with limited success. In Florida, the Recommended Decision is a.public tool to test the reasonableness of the parties' impasse position. The value in the Magistrate's Recommended Decision is the scrutiny brought to bear on the parties' positions and the public pressure to accept a neutral's recommendation that results from the impartial evaluation and analysis of each party's position. The point is, a Special Magistrate's.Recommended Decision must be afforded true deference by the parties and legislative body for the statutory scheme to work. Interest arbitration,throughout the majority of states,utilizes a standard or criteria • that is essentially the same as the Florida Statute, "Factors to be considered by e th Special P 4 17 Magistrate". See Section 447. 405,Fla. Stat. One state with a long history of police/fire interest arbitrations is Michigan. The Michigan Supreme Court clarified similar standards found in the"Michigan Police and Firemen's Arbitration Act"stating: "Since the.Section 9 factors are not intrinsically weighted, they cannot of themselves provide the arbitrators with an answer. It is-the [arbitrator] panel which must-make the difficult decision of determining which particular factors are more important in resolving a contested issue under the singular facts of a case, although, of course, all applicable ' factors must be considered." Detroit v.Police Officers Assn.;105 LRRM 3083, 3092 Similarly,Arbitrator James J. Sherman considered the Florida Statute for standards and comparison. • Arbitrator Sherman stated that the statutory standards in his opinion"are intended to be applied only selectively depending upon the.eircumstances of each case `that the standards' are not to be given equal weight in every case" and"Indeed in some cases particular standards probably have no applicability and should not even influence the decision '. City of Winter Maven, 65 LA 557 (1975) This Special Magistrate will consider and give weight to all five factors listed in Section 447.405 recognizing that some factors may deserve greater weight and discussion in this Recommended Decision. Further, the statutory language, "The factors,.among others, to be given weight by the Special.Magistrate", is recognition that the Special Magistrate may also consider other well-founded principles of interest arbitration. The five express statutory factors in 447.405 are: 447.405 Factors to be considered by the special magistrate. — The special magistrate . shall conduct the hearings and render recommended decisions with the objective of achieving a prompt,peaceful, and just settlement of disputes between the public employee organizations and the public employers. The factors, among others, to be given weight by the special magistrate in arriving at a recommended decision shall include: (1) Comparison of the annual income of employment of the public employees in question • with the annual income of employment maintained for the same or similar work of 5 18 employees exhibiting like or similar skills under the same or similar working conditions in the local operating area involved. (2) Comparison'of the annual income of employment of the public employees in question with the annual income of employment of public employees in similar public employee governmental bodies of comparable size within the state. (3) The interest and welfare of the public. (4) Comparison of peculiarities of employment in regard to other trades or professions, . specifically with respect to: (a) Hazards of employment. (e) Job training,and skills. '(b) Physical qualfflcations. (fl Retir�ementplans. (c) Educational qualifications. (g) Sick leave. (d) Intellectual qualifications.. (h) Job security.* (S) Availability offunds. In interest arbitration situations, Special Magistrates are confronted with conflicting • arguments raisin divergent issues hick gum g g , w must ultimately be resolved. The apphcatlon of generally applied arbitration principles used by magistrates to reconcile the conflicting arguments of the parties has been explained in some detail. City of West Bend, Wis., 100 LA 118, (Vernon, 1993) Wage issues constitute the most common subject of interest arbitration. City of Willowick, Ohio,, 110 LA 1146 (Ruben, 1998) Health insurance is also a.common issue for impasse disputes. Sauk County, Wis.,.114 LA 828 (Vernon, 2000) .Employers are seeking to shift the cost onto the employees because of the rising costs of employee healthcare. Further, employers are seeking cost efficiency in healthcare plans. Sauk County, Wis., 114 LA 828 (Vernon, 2000) In Manitowoc, Wis., School Dist. issues of pension and retirement benefits were submitted to an arbitrator to decide. 100 LA 844 (Rice, 1992) In City of Waterville, the city's discipline policies • were submitted to an arbitrator to formulate. 107 LA 1194 ichter, 1994 In this 6 19 dispute, here, we have several economic; healthcare, paid time off, management rights and operational issues to resolve. Nevertheless; the impasse procedure can provide various solutions because no issue is truly unique or of first impression in the broad labor/management community. A brief description of the methodology or general standard in interest arbitration practices used by this Special Magistrate can be explained.. Methodology may vary depending upon who proposes a change, employer vis-&-vis •union, and the type of issue to be decided, economic vis-a-vis rights. A Special Magistrate will employ a methodology to arrive at a decision based upon the interest of the parties. Methodology is the balancing of relevant factors found in the Record of a proceeding in order to make a decision. For example, a union-has a stronger,interest in worker safety and the employer has a stronger interest in economic stability. The Florida Statutes, 447.405 are more specific factors which are incorporated into this general standard. I can explain the methodology used in three different standards. .The first•standard is for wages or economic cost benefits which are often the heart of any interest dispute.- Each item of cost should be ascertained and assigned a dollar amount. For example, a one percent wage increase or giveback is approximately $25,000.00 for the Dania Beach bargaining unit. The City's financial statement indicates a 6% decline in revenue this year. Accordingly, this.bargaining unit xnay be expected to help make up about $156,000.00 of the shortfall. Fringe benefits are a real cost factor and savings in fringe benefits should be considered in the overall picture. -Public employment is not only-associated with low wages but also preferred fringe benefits including pensions and healthcare. Further,job security can be considered as*a miti atiii g factor to hi wages • J t3' g g � g 7 20 because shortages of work or layoff are seldom a factor. Defined pension plans, as enjoyed -by this bargaining unit, are preferred but they are being eliminated in private -industry. An employer offering a pension plan to its employees is a long-term-promise. The fact is the tax base of Dania Beach can be expected to grow in.the future if the last 75 years is any trend.. The 2011 cost of living index in southwest Florida grew by 2 %%o despite the cost of oil products and the real estate valise index. The price of a loaf of bread and other necessities has increased. A new CBA must be viewed based upon the whole cost-associated with anew contract term. If the employees are awarded a fair wage increase then other items of cost,such as healthcare and pensions must be justified by reasonableness, fairness, and/or industry practices. For economic consideration, the Magistrate will consider the employer's action in regards to its other employees, similar • type employees within the geographic area, general wage trends and economic area indicators and.. the changing industrial practices for overall-employee compensation. Without a doubt,the current real estate values in southern Florida must be considered and the Magistrate realizes .the financial impact to the City. Next, the Magistrate will : consider any need for catch-up wages if the employee group is disadvantaged in any particular economic need. The Magistrate notes the Union employees received merit and/or bonus increases in 2009 through present. Last year, the average merit/bonus pay was 3.72%. The last cost of living wage increase for the bargaining unit was.2.5% in October.2007. The second standard is for Union non-economic proposals. Union rights proposals can • be the most difficult. The Union is always the seeker of new or stronger rights Y g for its " 8 21 ( members. The Special Magistrate must consider the historical bargaining relationship and the maturity of the relationship. Often disputes may arise because of new operational needs, an unforeseen circumstance or'a rare experience that recently developed: A CBA is a living document and can be changed depending upon the need and circumstances of the parties. Not every dispute between the parties needs to be addressed in a CBA. Clearly, the Union's proposals are measured by the effect upon the health, safety, and security of its members. ' A magistrate may recommend a proposal when a strong connection to the members'health and safety in the workplace is made. The stronger the merits.of such a proposal the-stronger the possibility it maybe recommended. Factors such as industry practices and.comparative CBAs may be considered*as evidence for change. Still, those factors must be balanced against the cost to the employer and its effectiveness to manage its workforce. For example, forty years ago, the U.S. autoworkers may have been the strongest bargaining group in our country. The autoworkers could seek modifications to procedures and methods of the auto assembly- . line but never could the autoworker dictate the number of automobiles to produce. It is axiomatic that management has all reserved rights except those expressly given away by a CBA. Indeed, many management decisions for hiring, work product.and methods are central to management rights. If however,the assembly line is too fast,too dangerous, or. too•strenuous,the union has a meaningful voice and a right to seek contract terms for the workers' safety and health: The umon's right is a sliding scale. Worker health and safety must be documented to a point where management's unilateral right to govem. is diminished to the merits of the union's proposal. The union also has proper authority to seek contractual terms that secure the members security �t3'and dignity. The union must • . 9 22 show management abuses--and not merely an example of possible harm. The greater the management abuses the greater the need for more contractual security for its union members. The third standard is for management proposals. Management may propose a new contract term,modify an existing economic term, or seek an-existing term deletion. Here, the City is the driving force for wholesale changes to an existing CBA. Many of-the City's proposals are cost shifting matters or outright bargaining unit concessions. Management proposals have a slightly different standard. When management proposes a new or modified contractual term it must show and document what harm or effectiveness the proposal is meant to correct or accomplish. Management must show the reasons for economic savings or the waste therefrom. Management may seek a new contract term to make certain the workforce is aware a specific behavior is expected. Management proposals must be balanced against the workers' existing rights for economic security, safety, and dignity. Management must express and prove more than an inconvenience or mere dispute of terms. Management may document economic waste. Management may show excessive cost figures or multiple complaints or grievances that'cause an abuse of the work environment. But, even management's inconvenience or dispute should not lead to a modified contractual term unless a clear and persuasive showing is made for the modification. Moreover, if.management had previously agreed to some contractual terms then the proof of an abuse or cost must be exceptionally clear and strong. It is assumed the parties have previously. exchanged consideration for .the .existing contract term. • Interest arbitration dislikes change for the sake of change, When a Special Magistrate . g g . p � 10 23 considers a proposal to change existing language, the burden'of proof or justification is high. Magistrates should leave proposals for contested language changes to the parties for future negotiation unless the totality of circumstances justifies the need for immediate modification. Even then, the Magistrate must estimate the value of the deleted or modified contract term and realize other benefits may have been exchanged to secure the prior existing term. The Recommended Decision that follows has considered not only each factor in the Florida Statute but the general standards I have outlined above. The Recommended Decision is not designed to make any one party satisfied. The Recommended Decision is designed to leave the parties in a position where reasonable bargainers, given the totality of the-circumstances, will be able to complete the terms of their CBA..The Recommended Decision is balanced and fair. • I recognize that public dispute resolution is different in the public sector than in the private sector. The private sector is bilateral, employer and employee. The viability of a thriving business depends upon competitiveness and innovatioxi of goods and services. Private sector unions recognize the solvency of the employer will provide job security. Whereas the public sector is trilateral. The employee,governmental unit as the employer, and the public as.the taxpayer make the process different. While the profit motive is absent in public services, the taxpayers' vote and support.is the ultimate decider of.the level of public services. . The legislative body reflects the taxpayers' vote. In State of Florida v.Florida Police Benevolent Association,the Florida Supreme Court noted public employees' bargaining is'not the same as private bargaining. 613 So. 2d 415, 142 LRRM 2224 (Fla. 1993) The Court explained that while the private sector experience could 11 24 serve as a reference, the private sector is not an infallible basis for public employment.' Id. Notably,the Court reasoned the public sector employees in Florida require legislative approval and discretion that cannot be bargained away. Id. @ 418 Nevertheless; the legislative body must recognize the Florida statute and its statutory scheme have a significant purpose and it should not be easily disregarded. Public'employee bargaining in Florida does create a conundrum. The legislative body must ultimately answer to the taxpayer. -The taxpayer ultimately holds the purse strings. When times are hard, legislative bodies, public employers and public employees have difficult choices to make. The legislative body is faced with only four(4) real choices in a declining revenue period. The first is to freeze hiring, discretionary expenses, and purchases. The next choice for a legislative body is to cut existing services. The third choice is to seek wage or benefit concessions from, employees. And finally, the legislative body's fourth choice. is to increase taxes or fees where permissible. Obviously, the easiest legislative body choice after an expense freeze is to seek. concessions from its employees. The'legislative body knows cutting existing services or increasing taxes may upset the taxpayers. However,employees need a livable wage. The cost of goods has increased for employers and employees. Property taxes will increase as the real .estate market recovers. In trath, a proper solution in this economic time should be a mixture of all available tools without political posturing. Public services come with increased costs by external factors beyond anyone's control. If the public employee must give-up some wages, the legislative body should raise taxes- or cut services in a fair matching amount. The City of Dania Beach is financially sound. The.employees of this 12 25 City are not overpaid. A balanced approach is in the public interest. In fact, comparisons to other similar cities in the area show Dania Beach employees at the lower end of wage compensation. Further, it appears the average wage in the bargaining unit is approximately $38,000.00 per year. The.City already pays its employees close to the lower middle class'level. These low paid employees cannot.be expected to save the legislative body from tough decisions. The following Finding of Fact and Recommended Decision is a product of the Florida statutory scheme and the methodology described above. . Finding of Facts and Recommended Decision Article 41. Term.of Agreement Article 41 will be amended to include: • The Agreement shall continue in force until September 30,2012. Rationale: It is clear to the Special Magistrate, the parties cannot effectuate a longer CBA in good faith. The parties cannot agree to reasonable terms considering the current state of the parties' labor relations. Toe parties need a cooling off period. The City is asking for excessive concessions from previously agreed to language. The Union agrees to some concessions but wants some wages and the status quo. I believe a substantial change in healthcare costs and pension reform can be implemented at this time to accomplish reasonable concessions from its employees. However, the City's proposals are far too extreme. If the legislative body is urged to enact the City's proposals, as presented in this hearing, then lawsuits and unfair labor practices are.-sure to follow.. The citizens and • 13 26 public interest in Dania Beach requires moderation and reasonable actions by the legislative body. Article-22. Group Insurance The Special Magistrate recommends Article 22 will be amended to include part of the Union's proposal for cost sharing of the group health insurance premiums. The Union proposed and I recommend- $76.53 Monthly for Single coverage $139.66 Monthly for Single plus 1 coverage $202.80 Monthly for Family coverage All other language in Article 22 will remain the same except for the immediate implementation of the above rates upon contract ratification. Rationale: The Union offered the above concession from basically free healthcare for all employees. The Union's offer to cost share their healthcare insurance is an olive branch offer the City should acknowledge as a meaningful win. This language will affect 75 bargaining unit employees of the 110 total City employees. Assuming one-third of the 75 are each either single, married or have a family, the. cost concession to the. City is approximately $125,000.00 per year just for these 75-bargaining unit employees. Stated differently, $125,000.00 represents a 5%wage concession that goes directly to the City's bottom line. Additionally, the City states it is self-funded for healthcare. During the hearing process, the Cityadmitted it does not coordinate its retirees with Medicare beneficiaries*as to fart • B. This is a startling mistake costing the City, in my estimation; $100,000.00 per year. 14 27 ( Every qualified retiree, age 65 and over, should be required to have Part A and Part B of the Social Security Act provision in order to qualify for the City's supplemental healthcare benefit. I find it very atypical that Dania Beach was unaware of such a substantial cost saver in Part B of Medicare.. . Accordingly, the City must review this benefit,realize its cost-savings, and consider these real savings before raising future rates .for active employees or existing retirees. Article 35. Wages The Special Magistrate recommends Article 3.5 will be amended to.allow a 3% general salary rate increase effective October 1,2012. All language related to cost of living adjustments.(COLA), merit and/or.bonus wage' • 'increases,will'be stricken and superseded as of September 30,2012. Rationale: The City is correct that future wage increases must come from the bargaining table. The Union`will be forced into timely negotiations or suffer the wrath of its members. The City will plan its budget by the-economic realities of the time period. I view this modification as a win/win for both parties. The City will avoid long negotiations. The Union members will not get automatic pay bonuses but will have the right to negotiate single or multi-year collective bargaining agreements. The.Union will need -to be organized to propose timely general wage increase as the CBA expires. The normal practice for statewide and national wage improvement's is for public employees to negotiate when their CBA expires. 15 28 Article 3. , Management Rights Article 3. The Special Magistrate recommends the status quo. Rationale: The Laity failed to produce or justify any reason to change the existing language. 'It is obvious Article 3 did not cause any legal or language problems. The parties admit only one case of discipline was grieved in eight years. The City's attempt to change Article 3 is disingenuous. Further, the City's proposed language could cause immediate unfair labor practice charges with PERC'if the legislative body imposes such language upon the bargaining unit. See'§447.309(l) Fla. Stat. and Citrus, Cannery, Food Processing and • Allied Workers v. City of Sarasota,29 FPER 187(2003). Article 4. Union Rights Article 4. The Special Magistrate recommends the status quo. Rationale: 'The City failed to produce or justify any reason to change the existing language. Further, the Florida Statute places a burden upon both the City-and certified bargaining representative to act in good faith. The City's proposals are repressive.to.Union Rights and the Union's statutory obligation'to represent its bargaining unit, Many arbitrators have decided union rights and the union's freedom to act is inherent in a collective bargaining statute for public employees. See e.g. City of Norwalk, Ohio Dist. Bd. of. Educ., 99 LA 825 (Miller, 1992) 1.6 29 Articles 25, 26,27,28..and 29. Various Leaves The Special Magistrate recommends the status quo. .The Union expressed a willingness to negotiate some reasonable process for paid time off and I encourage the parties to return to negotiations for the succeeding CBA to accomplish your mutual goals. Rationale: .These existing articles provide a reasonable grant of leave for specific and general purposes. In contrast, the City's proposals are extremely harsh and unworkable. First, the City proposed to confiscate 25% of the value of earned accruals, which is blatantly illegal, a theft. If the legislative body imposed such confiscation, it would be inundated with lawsuits, grievances, and unfair labor practices. The City cannot just decide to • abolish 25% of a debt to any bank, creditor, or citizen. The employees-of Dania Beach earned these accrued vested benefits'and have a right to reasonably use them. The City already has the right to cashout some excessive hours but the City failed to do so. Secondly, the City's proposal for vacation time hours is contrary to normal labor relation practices. It is normal for a 20-year employee to enjoy extra vacation hours. A senior . employee's continued service is valuable to the City. ,A,long-term employee who has the knowledge and experience to make decisions or*instruct junior employees as.to complex problems that may arise is a valuable asset to the'.City. If the City treats a-long-term employee's service as meaningless then the City cannot expect the employee to continue his leadership and stewardship roles.for junior employees. An accrual of 160 vacation • pouts for a long-term employee is not excessive. Put simply, the City's proposals are a 30 17 bad idea that will only cause animosity in the workplace and cause some employees to leave the City. After all, if the City does not respect its senior employees why would those employees have a loyalty to the City. Loyalty cuts both-way through mutual , respect. City proposal. Union Dues Deduction The City proposes a $10.00 per year fee for dues deductions. The City would gain $380.00 per.year. Admittedly, the City has the right to ask for such a deduction by statute. The Special Magistrate rejects this proposal. . Rationale: ' Again, the City is being foolish. A labor union can cause more costs and trouble for an employer by grievances -and work routine than this fee. The previous labor relations atmosphere between the parties was very.good. The.City may have the right to impose a fee, but does the City really want to do this. A petty proposal for one-upmanship does not show good faith. City proposal. Employees Charged With Felony Crimes The City proposes new language for employees charged with a felony. The Special Magistrate rejects the City's proposal. Rationale. • The City's proposal is redundant. The City already has the authority to take action against wrongdoing employees in the Management Rights Clause. The City is offering 31 language where no -problems exist. If a CSA/Parking Enforcement Specialist skims money from a City parking meter,-the employee should be immediately terminated. If an Employee Relations Specialist leaves this employee on the job or on paid leave, they should both be terminated. City Proposal. Collective Bargaining. The City proposes new language-as to union representatives and collective bargaining. The Special Magistrate rejects the City's proposal. Rationale: The City's proposals are not needed and may be an unfair labor practice under Florida Law. As previously explained,the Florida statutes give each party a right and obligation • to act with good faith. It is a.statutory duty for the employer to bargain in good faith with a certified representative.. It is the public policy of this State to collectively bargain between public employer and the public employees' union. The City proposal is rejected, City proposal. Disciplinary Appeals, The, City proposes to change existing language for its benefit. The change would limit an existing disciplinary procedure. The Special Magistrate rejects the City's proposal in total. Rationale: The legislative body cannot impose a change in existing language for a disciplinary process. The Union had bargained and the language was agreed to in the last.CBA. See, • r Bd of City Com'rs of Sarasota City v. Cannery Food.Processing & Allied Workers, 32 19 Drivers, Warehousemen and helpers, Local Union 173, 738 So, 2d 953, 954-55 (Fla. 2d DCA 1998); In re CWA,4 FPER 14135 @249(1978) Further; the City's proposal does not explain why-such language is needed. The parties admit the existing disciplinary process has not beeni abused and there is no cause for change. Ci osal. Pension Plan ty.pro P The City proposes various amendments.to the City's Pension Plan(codified in Article III of Chapter 18 of the Code of Ordinances). Also, see Article 32 The Special Magistrate only recommends the adoption of the City's proposal to eliminate • the DROP plan effective August 1, 2012. 1 reject all other proposals as unwarranted and unjust to long-standing employees. Pension plans are long-term promises and.those pension plans cannot be altered every few years when the employer finds it convenient. The City closed the pension plan to-new employees in 2006 knowing the costs may increase but the savings would be realized 10 to 15 years down the line.: Rationale: The DROP plan was poorly drafted and the DROP plan had unintended consequences. The DROP plan is an employee elective and not a mandatory provision. The DROP plan cost'the employer more than-anticipated and other laws and regulations changed the purpose of the DROP plan into a windfall for some employees. The DROP plan is .significantly different from the pension plan itself and the DROP plan should be • eliminated. �n 33 In contrast, pension plans,. once established; are meant to be a long-term promise or obligation by the employer. Employees work 25, 30, or 40 years toward the promised pension benefit until the end of their careers. Isere, the City closed its pension plan'in 2006 to new employees and there are still 35 employees remaining in this plan. With full knowledge and research, the City closed the plan to new employees but continued its obligation and promise to the 35 long-term employees. Significantly, the employees pay almost 16% of deferred earnings to fund this plan and 3.6% directly.out. of their paychecks. 1 find it outrageous that the City now proposes draconian changes - all designed to relieve the City from its promise. Put simply, the City knew the cost of this plan, agreed to fund it, and collected the employees'. contributions to the plan. The pension plan is-viewed as a guarantee by its members. The City knew this in 2006.. The • pension plan must remain in effect for those vested in it. Article 33. Seniority City withdraws proposal and agrees to status quo. Article 28. Holidays . The city proposes changes to existing language. The Special Magistrate rejects the City's proposal. Rationale: The City offered no justification to change existing language.. The City's proposal would save some money at the workers' expense. I see no need for this concession. • 21 34 ' l Article 37. Layoff and Bumping The City proposes changes to existing language utilizing a "Retention Matrix" for layoffs. The Special Magistrate rejects the City's proposal in total. Rationale: The City's proposal is not needed nor has the City offered any justification for such a change. This proposal seems to-eliminate seniority and replace it with City discretion. Again,Article 37 is established language in the CBA. The City thinks it can just throve it away but that language was bargained for and must -be respected as an agreed to compromise.. City proposal. Contract Constitutes Entire Agreement Of The Parties The City proposes new language. The Special Magistrate rejects the City's proposal. Rationale: The City is unilaterally proposing this language despite Article 34, saving clause. The City offers no justification for this new language. ,The proposed language is not needed as established state and federal laws and PERC decisions address the City's concerns. City proposal.ro osal. Collateral Documents The City proposes new language to acknowledge'or incorporate by reference other City provisions such as Administrative Rules, Department Rules, and other policies established by ordinance.. 35 The Special Magistrate rejects the City's proposal in total. Rationale: The City's proposal is confusing and unwarranted. The City's other rules, policies and -ordinances do not have the same legal effect as a CBA.. The City's proposal could open up the administrative rules to a grievance procedure in the CBA. A CBA has the authority of the state statute and a PERC board to interpret and decide points of law. Here;the City's'proposal would cause more confusion and a waste of time, effort; and costs if it'were included in'a CBA. Finally, the City offered no justification for such- language. Article 12.. Workweek.,Breaks and Overtime • The City proposes to amend existing language apparently for the City's convenience. The Special Magistrate rejects the City's proposal in total. Rationale: The City offered no justification or reasons to change existing language. It appears the City just wanted to rewrite the entire CBA for their benefit. At some point, the City's demand for concessions is overreaching. City proposal, Probationary Period The City seeks new language for the probationary period. The Special Magistrate rejects the City's proposal. 36 Rationale: The City offered no justification or reason to amend existing language. I must state, it appears the City is just dictating rather than bargaining in good faith. City proposal. Employee Evalu4.tions The City proposes new language for employee evaluations and the*City excludes them from the grievance procedure. The Special Magistrate rejects the City's proposal as redundant and not justified. Rationale: The Citys proposal is redundant to Article 3, Management Rights. Further,performance •. evaluations must have some control or cross check of management authority, Otherwise, an employee may be fired or denied economic benefits merely because of a personal dispute or animosity. City proposal. Prevailing Rights The City proposes that"there are no past practices". The Special Magistrate rejects the City's proposal. Rationale: The City's proposal is not justified.or warranted. In faci, it is the state of labor relations between the parties that requires a past practice doctrine. The City has demonstrated extreme concessionary,demands. The Union should be very concerned. Union proposals. Various Items 37 The Union cites to a June 13,2011 letter from the.City's previous lead negotiator, James C. Crosland received by the Union negotiator along with a packet of articles that had been tentatively agreed to by the parties in 2009. The Union admits the'new City negotiator rejected all of those agreements. The Union seeks a three-(3)year CBA,salary increases, and mostly the status quo. The Union agrees some healthcare costs should be shifted to the employees. The Special Magistrate cannot recommend the Union proposals. The Special Magistrate does recommend some part of the Union's proposals as to healthcare costs described above. I encourage the Union to accept this Recommended Decision, lobby for support, and be ready to negotiate the succeeding CBA iri good faith • Conclusion The Special Magistrate has considered all issues,presented by both parties and asks the legislative body and Union membership to ratify the above Recommended Decision as the best package available during this difficult time. The parties are free in a few months to begin good faith bargaining for the succeeding CBA. I certify the above Recommended Decision is made pursuant to-the Florida Statutes and served on the parties as d. . artin O.Holland, Special Magistr to Dated June 11,2012 • 38 i STATE OF FLORIDA PUBLIC EMPLOYEES RELATIONS COMNIISSION CITY OF.DA14U BEACH, ` Public Employer and Case No. SM-2012-011 AFSCME COUNCIL 79' Employee Organization. CITY OF DANIA BEACH,FLORIDA'S NOTICE OF FILING WRITTEN SUMMATION The City of Dania Beach,Florida,hereby places all parties on notice that it has filed the original'of its Written Summation and a copy of this Notice in the above matter with Special • Magistrate,Martin Holland,4935'Cerromar,Naples,FL 34112 and a copy to Mary Jill Hanson, 301 Ocean Bluffs'Blvd.',Apt.306,Jupiter,FL 33477 this 21st day of May,2012. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been famished by Electronic filing on this.2lst day of May,2,012 to Jill Hanson, Esq., 301 Ocean Bluffs Blvd.,Apt. 306,Jupiter,FL 33477. Florida Bar No. 1846 Goren,Cherof,Doody,&Ezrol,P.A. 3099 East Commercial Boulevard,•Suite 200 •Fort Lauderdale,FL 33308 Tel: (954)771-4500/Fax: (954)771-4923 \\gcsbs\company\Libmr5ALibrar3 GOV CLIE=DANIA BCH 614\1104021NOTICE OF FILING WRn-M SUNWTION.doc 39 STATE OF FLORIDA PUBLIC EWLOYEES RELATIONS CONWSSION CITY OF DANIA BEACH, Public Employer and Case No. SM2012-011 AFSCME COUNCIL 79 Employee Organization. CITY OF DANIA BEACH'S VAUT EN SUMAUTION 'BACKGROUND: On January 25, 2012, the City of Dania Beach (City) notified the Florida Public Employees Relations-Commission that impasse has been reach in negotiations between the City and AFSCMR Council 79 (Union). The City and the Union were in,negotiations•for'a•new collective bargaining agreement that expired September.30, 2008.1 Negotiations in 2008, 2009 and 2010 failed to result in the new CBA; The most'recent round of collective bargaining started November 1,2011. The City and - the Union conducted eight bargaining sessions before impasse was.declared.and one additional session after the declaration and before the'impasse hearing. In the short span of time that negotiations were active(November 1,2011-March 6,2012)the Union switched lead negotiators 1 The last complete CBA expired 9/30/07(City Exhibit 1-Tab 4)but was extended to 9/30/08 by'a memorandum of • understanding(MOin.See Summation Appendix"1". 4.0 three times. Notwithstanding the lack of continuity at the Union's. lead negotiator post, significant progress was made in negotiations until the Union disavowed that progress and began to chant its "keep the status quo" mantra. The status quo that the Union clings to reflects the rosier economic picture that the City and Union viewed when they were negotiating the 2005- •2007 CBA and not the harsh economic realities of 2012. Continuing fiscal challenges demand an economic course adjustment lest the City sails into the waters of financial urgency like many other public employees. The City's proposals answer that demand-without sacrificing employee job security or public services..' The City's proposals should be viewed as a time out from the acceleration of wage and benefit costs; an adjustment but not a reversal of course. Approaching the impasse hearing, the City, relying on the progress made during bargaining, felt that recommendations from the Magistrate on twenty-one contract issues were needed. (City Exhibit 1,Tab18).Those issues are: 1. Management nights 2. Union and Employee Rights • 3. •Union Time Pool 4. Union Dues Deduction 5: Employees Charged With Felony Crimes. 6. C61lective Bargaining 7. Disciplinary Appeals 8.. Wages 9. Insurance 10.Pension Plan I I.'Paid Time Off"PTO"(combining and replacing sick leave,vacation leave, and other paid leaves) 12. Seniority 13.Holidays 14.Layoffs 15.CBA Constitutes Entire Agreement 2 The Magistrate will recall from the hearing that Mr.Anon viewed financial urgency as a prerequisite for • AFSCWs to consider wage or benefit concessions.That's kin to making a drowning man make it to shore before throwing him a life vest. -2- 41 16.Collateral Documents 17.Term of Agreement 18.Hours of Work and.OT 19.Probationary Period 20.Employee Evaluations 21.Prevailing Rights The Unioif s impasse position3 reverses agreements made by the City and Union during negotiations•and results in additions to the impasse issues List~Accordingly,the following pages 'set forth the City's proposals and it's justification on the following impasse issues and requests recommendations from-the Magistrate on each. 3 See City Exhibit 1,Tab 22 for the Union's list of impasse issues.The Union substituted a nearly identical version • of the letter dated April 5,2012 at the beginning of the impasse hearing. -3 - 42 MANAGEMENT RIGHTS CITY PROPOSAL: . A. . Nothing in this Agreement shall be construed or interpreted as a waiver or limitation on any managerial rights granted to the City as.a public employer as described in§447.209,Florida Statutes. CITY JUSTIFICATION: Absent a voluntary waiver or acquiescence. to limitation,the foregoing description of managerial rights is reserved to the City as a Florida public employer.The Union proposes carry- over of the language from the expired 2005-2007 CBA. The City's management rights are derived from the above referenced statutory grant of managerial authority therefore-no contractual provision is required unless it is for the purpose of.' limiting the City's authority. To mynimiz6 the eventual claim by the Union that some limitation Of managerial authority is intended by language in the CBA, the City's proposed language is necessary to insure that no other provision(express or implied) of the CBA is read to diminish the.City's statutory rights.Throughout bargaining,the City made clear to the Union that the City has no intention of limiting or waiving its right to manage;the foregoing language memorializes that intent. The Union has an alternative motive that drives*its proposal;it wants to elevate the clause "take disciplinary action for just cause,to a contractual and thereby grievable standard.The City. is opposed to addressing disciplinary disputes in the management rights article (and grievance article as well)and address disciplinary challenges in its proposed"Disciplinary Appeals"article ' discussed in more detail below. -4- 43 UNION AND EMPLOYEE RIGHTS CITY PROPOSAL: A. The City agrees to recognize the Union's-officers and three (3) City Employee stewards, .designated by the Union, as agents of the Union. The Union shall furnish•written notice to the Department Head of the designated Union officers and stewards within three days of ratification Of this Agreement and when any change in designation is made thereafter. The City recognizes the right of the Union-to designate one (1) chief steward from among the three (3) City Employee stewards. The'authority of a Union steward to act on behalf of and bind the Union is implied from their designation as Steward. B. Union officials as designated above shall only be able to meet with City Employees in non-work areas (i.e., break areas) and during non work time, Nothing in this section shall preclude or interfere with the City's right to control access to City facilities for safety and/or security purposes. C. - Union stewards will be granted leave to engage in collective bargaining, subject to the • .limitations set forth in Article, or to meet with the representatives of the CITY for grievance investigation and/or consultation with management representatives to avoid or resolve grievances. ID. Union Stewards may be granted PTA " ' 4to engage in the following representative activities: 1. When an Employee is required to appear at a hearing related to a grievance and or arbitration. 2. When an Employee iS responding to disciplinary action or investigation. 3. When an Employee is attending a pre-determination hearing. . 4. When participating in collective bargaining. . E. The CITY may stop the use of such time off-if it interferes with productivity or -manpower needs.However,the exercise of such right on the CITY'S part shall not be arbitrary 4 The City offered the Union the right to create a•pool of time voluntarily donated by bargaining unit employees from which their representatives could draw down to receive pay while engage in representative activities.The • Union rejectedvoluntary pool time and the City has since withdrgwn its pioposal;hence the clause that references PTO is now shown as deleted. -5- 44 it •. or capricious,not shall it allow the CITY to proceed in a manner that deprives the Employee of his or her right of representation. T. No Employee shall engage in Union business while on duty except as referenced herein. An Employee who violates the limiiations on Union activity during working hours is subject to disciplinary action. G. The City'Manager will grant the Union stewards PTQ in order that they may attend cdnferences, semma.rs and similar events or other union activities related to their representative function provided the leave does not adversely affect the on-going day to day operations in the any department. H.- • Stewards shall maintain and provide.to the City a Union Business time-out slip-that shall be processed to show their.accumulated'hours used against the Union time pool. CITY JUSTMCAMN: When an employee shifts' from performing City assigned duties to acting as a representative of the Union, the employee.should be treated as not being in work status 'and • therefore off the City payroll. The City should not be required to subsidize the union activities nor provide elevated status to an employee who volunteers to serve the Union. Union representatives (employees) have significant banks of accrued time to.take leave from work to engage in Union business.An employee would not expect the City to continue to pay them if the employee took two hours during the City work day to work and outside job; working for the Union is an outside job and the employee should not expect to stay on the City payroll when the employee takes leave from their regular duties-to perform Union work. No doubt the Union will assert the dusty mantra that the role of the union stewards advances the,interest.of both labor and'management. The City pays employees to perform the responsibilities for which the respective employee was hired,not inclusive of serving as Union's on-site representatives during the employee's work hours. The Union should be prepared to ' directly compensate the employee's that perform Union duties and not expect the City and its taxpayers to subsidize Union activities. -6- '4 5 COST ANALYSIS: The two current Union employee representatives have hourly rates of$22.93 and$22.71. In addition to the lost value of each hour of work when an employee Union representative engages in Union business during City work•hours,there is also the added interference with work assignments.and delay providing the public service that each employee is engaged*in providing. See additional discussion under Collective Bares fining section below. 46 R UNION 7BW,POOL CITY PROPOSAL: A. Employees may donate PTO to be set aside in a Union Time Pool and subsequently used to permit designated Union stewards to engage in representative activity or bargaiaiing activities . during the City work day. B. Donated time shall be transferred from the participating Employee's accrued.PTO bank within,thirty(30)days of the ratification of this Agreement and thereafter once each year*dining the repeat month of the initial transfer. .. C.. Time Pool hours shall roll over from one year to the next. D. Union representation shall utilize the Union Time-Out slip when using Time Pool hours. E. Union time pool hours shall only be used.for a steward's leave from assigned regular duties. F. Union time-pool hours shall be classified as paid leave from work but shall not count as • time worked for the purpose of calculating overtime. G. The City may delay the use of such time off if it interferes with productivity or manpower needs. However;the exercise of such right on the City's part shall not be' arbitrary or capricious, nor shall it allow the City to proceed in a manner'that deprives any Employee of his or her right of representation. Whenever the City has scheduled a meeting at which a Union irepresentative is required and that meeting is cancelled,the City-shall reschedule the event at the convenience of both parties. H. A Union steward who engages in representative activity as described in Article 4 D must report the use of Union Time Pool time using the procedures and forms established by the City. 47 City comment:Although previously listed as an impasse'issue the City,the City withdraws its proposal. However,it is the City's position that the time an employee spends on Union business should not be paid for by the City as;further addressed in the Union and Employee rights article and the Collective Bargaining Article. 48 UNION DUES DEDUCTION CITY PROPOSAL: A. Upon receipt of written authorization from an Employee, the City agrees to deduct the regular Unioji dues from each:Employee's.pay and remit such deductions to the Union thirty(30) days from the date of the deduction. Dues deductions shall commence during the-second pay period following receipt of written authorization. B. The Union will notify the City and its members in writing thirty(30) days prior to any change in dues deductions. C. It is .understood that any Employee may revoke in writing at 'any time his/her authorization for dues deduction by giving a thirty (30) day advance notice to.the City and the Union. The Union will indemnify, defend and hold the City harmless against any claim made and against any suit instituted against the City by members of the Union regarding dues check- off and deductions. D. Once annually, the City will submit an invoice to the Union for.the reasonable costs • incurred by the City for processing dues. The Union will pay the invoice.within 30 days of billing,The City and the Union agree that a pass through cost of$10.04 per Employee member per year is a treasonable fee. CITY JUSTIFICATION The City's right to recover reasonable costs.for administering the Union's dues deduction program is based on statute.Florida Statute 447.303 provides: , Reasonable costs to the employer of-said deductions shall be a proper subject of - collective bargaining. Such right to deduction, unless revoked pursuant to s. .-447.507, shall be in force for so long as the employee organization remains the certified bargaining'agent for the.employees in the unit. The public employer is expressly prohibited from any involvement in the collection of fines,penalties, or special assessments. The annual cost to the Union would be$386.00 since there are currently 38-dues paying members of the bargaining unit. By way of comparison, the employees paid $13,749.40 to the Union in calendar year 2011(Union dues are$16.10 bi-weekly). COST ANALYSIS: $380 annual cost to Union. 10- 49 . EMPLOYEES CHARGED WITH FELONY CREMS.' I Uff PROPOSAL: A. When an Employee is.arrested and charged with'a felony offense which has a nexus to their City job duties or involves conduct against a co-workers-the.Employee shall be placed on administrative leave without pay until final disposition of the criminal charges. An Employee who is convicted of or who pleads guilty or no contest to a felony in conjunction with a plea negotiation shall be terminated from their employment.with the City- B. An Employee placed on administrative leave without pay,under these circumstances may use PTO during the leave period.. If found innocent following trial or if the State.Attorney or Federal prosecutor drops the charges,not as a result of a plea deal,the PTO.used will be reinstated. C. An Employee who has'been arrested shall report the arrest to the City Manager within forty-eight(48)hours of arrest or at the inception of the Employee's next workday, whichever occurs first. CTTY JUSTIFICATION: . The City's proposal is best understood by this example: if a City employee in the bargaining unit position CSA/Parking Enforcement Specialist(responsible for collection of-cash deposited in City parking meters)were to be charged with felony theft for skimming money from the City parking meters,the employee should have no expectation that the he/she could retum to work, resume those same duties and be paid by the City (the victim of the crime) while the criminal charges are pending. Nor, should the employee be placed on administrative leave with a as the Union suggests. The City's proposal does keep the employee in paid status,albeit with- payment PY ' leave a(henceforth PTO). from the em to ee s bank of accrued (h n P Y • s Language added to clarify limitation on procedure. • 50 COLLECTIVE BARGAINING CITY PROPOSAL: ` A- The membership of the bargaining unit shall be represented in collective bargaining by the President of the Union or by any person or persons designated by the Union in writing to the City Manager. The Union representative or representatives are the official representatives of the "for the purpose of negotiating with the City. Negotiations entered into with persons other Union g ty g PmP � than those designated by the Union or the City Manager shall be deemed unauthorized alid shall have no weight or authority.It shall be the responsibility of the Union to notify the City Manager in writing of any changes in the designation of any certified representative of the Union. B. Collective bargaining sessions shall-.be conducted so as not to.interfere with the normal City operations. IC. Employee members of the Union bargaining team may use pool i TO to obtain pay for time spent in negotiations. CITY JUSTIFICATION: There was much evidence and discussion at the impasse hearing regarding the amount of time the City and Union have been engaged in collective bargaining. In the nine(9)bargaining sessions that occurred between.November 1, 2011 and Impasse Hearing, two city employees who sat on the Union bargaining team were granted approximately ninety (90) hours of leave with pay, after which the Union announced the collective•efforts of the negotiators.. In retrospect,providing the employees leave with pay was a gratuitous investment in the bargaining process by the City that paid no return. The City negotiating team has and will continue to amenable to'bargaining 'during off hours -so .that employee negotiators can attend to their city.work responsibilities without the . distraction of collective bargaining. Although the City's initial proposal was to allow bargaining unit members to use,not to draw on,donated pool time and be paid by their co workers,as noted above,the City has withdrawn that proposal over the objection of the.Union and now substitutes that a bargaining unit team member can use PTO to obtain pay for time spent in negotiations. -12- 51 As notated above,the City's proposal has been modified 6 to delete any reference to Pool . Time. i COST ANALYSIS: In the most recent round•of bargaining that.started November 1, 2011, the two City employees that were on the Union's negotiating team spent approximately 90 hours in bargaining and another 32 hours in the impasse hearing,: all at City expense. Using the employees' respective hourly rates;the bargaining and impasse process the two employees were paid approximately$2,784 by the City to represent the Union. The two Union employees,Larry Nadeau and Terry Peterson, have about 1577 hours of combined accrued leave time valued at nearly $40,000.00 that they could have taken in lieu of the City paying,them. See City-Exhibit:1,Tab 16. Paradoxically, since the two employees were on City time while they engaged'in the bargaining and impasse process,these employees continued to earn additional sick and vacation time. Under the City's PTO proposal, additional leave time is not earned when an*employee is on leave;it is only earned on hours.actually worked.' • 6 Parties are allowed to change their positions during impasse,whether before a special master or before a legislative body,provided that the amended proposals do not touch on a topic that has not been previously negotiated at the Bargaining table.City of winter Springs v.winter Sarin sg Profl,885 So.26494,500(Fla.lst DCA 2004).Copy . attached.Copy attached as Appendix"5" - 13 - 52 DISCIPLINARY APPEALS CITY PROPOSAL: A. 'The City may discipline an Employee when the City determines that the Employee has violated City or Departmental rules, regulations, orders.or performance.standards or when the Employee has. engaged in unethical or illegal activities. Neither counseling nor instruction • . (verbal or written) are discipline but counseling or instruction can be used to establish that an Employee has knowledge the Employee's conduct that gave rise to the counseling or instruction is not proper.All discipline shall be in writing and shall be provide to the Employee and shall be placed in the Employee's personnel file. Discipline is deemed a proper exercise of managerial rights unless it is arbitrary, capricious, or discriminatory but may be-appealed as follows._ The Union has the hurdeii of proof in a disciplinary appeal. Discipline is classified as either major or minor as follows: B D MAJOR-. Termination • Disciplinary Demotion Suspension without pay-more,than three(3)days i C. No Employee shall be, subject to major discipline without first being`afforded a pre- determination conference with the City Manager. No pre'-determination conference shall be conducted with less than teri•(10)calendar day notice to the Employee. 11Ili!gM Wl itten warning Suspension without pay of three days or less D. • Appeals of disciplinary action shall be handled as follows: . 1. Major'discipline may be'by appeal to an arbitrator, by using the same procedure for appointment of an arbitrator as set forth in Grievance Article above. The Union may request review of the discipline by.the City Manager.provided it does so before the ten . (10) day time limit for requesting arbitration. If a meeting is requested,the ten(10)time limit for requesting arbitration shall be abated. The request for appointment of an arbitrator must be made in writing within ten (10) calendar days of notice of the City's disciplinary action. The cost of the arbitration panel, if any, shall be split by the City and . the Union equally. 53 2. The arbitrator may sustain, reverse, or modify the discipline set by the City Manager. The decision of the arbitrator is final'and binding,on the parties. 3. Written reprimands may. not be appealed but the'Employee may submit a written response provided the response'•is submitted within ten (10) days of the written reprimand_ If a written response is submitted by the Employee,it shall be attached to the written reprimand and placed in the Employee's personnel file. 4. Suspensions without pay of three (3) days or less may be appealed to the City Manager whose decision shall be final. An appeal shall be fled in writing within ten.(10)days of notice of the suspension without pay: The City Manager shall conduct an investigation of the discipline and render a decision within twenty(20) days of the appeal. The City Manager's decision may be to sustain,reverse, or modify the discipline.In no event shall the City Manager's decision increase the discipline to more than a suspension without pay of three (3) days. The City Manager may conduct interviews with the grievant, departmental staff, or members of the bargaining unit as.part of his/her investigation of the discipline. F. All prior discipline received by an Employee shall be considered when a new discipline is • contemplated, but not all prior discipline shall be given the same weight. By way of example: _ The older a discipline,the less its weight.A•pattern of discipline over a short period of time has greater weight than sporadic discipline spread over an extended period of time. CITY JUSI ATION: i With due respect to the Magistrate•who likely performs the function of an arbitrator in other matters,the cost of arbitration has become prohibitively expensive particularly when the matter under review is a disciplinary appeal over minor discipline. The City's proposal treats disciplinary appeals separate and apart from true.grievances. Florida Statute§447.401 defines.a. girievance as a matter involving"interpretation or application of the collective bargaining agreement". Florida PERC and case law have distinguished disciplinary appeals from traditional grievances. Coupled with the City's proposal on disciplinary appeals, the City's proposal ends the treatment of disciplinary appeals as a type of grievance. With regrets to the Magistrate who handles arbitrations of disciplinary challenges for a fee, costly arbitration is avoided by the 15- 54 City's proposal. Notwithstanding the Union's argument that the Union uses discretion in advancing disciplinary challenges.to arbitration, it can offer no guarantee than an employee challenge•will not betaken.Under the City proposal, cost-free disposition of an appeal of minor is to be favored over costly arbitration. The City asks the Magistrate to take special note of subsection F of the City proposals. Unlike the Union's Proposal which would fully.extinguish'a past discipline and prohibit its consideration in fixture progressive disciplinary action,the City proposal permits consideration of previous discipline albeit with diminishing weight over time. This approach is more in line with the concept of progressive discipline. In the'end,the City cannot be compelled to-include a process for disciplinary appeal in the CBA.Absent agreement,disciplinary appeals will default to the status quo means of appeal outlined in the.Career Service Rules.As noted in lid.of City Com'rs of Sarasota City v. Citrus, . Cannery Food Processing&Allied Workers-,Drivers,'Warehousemen&Helpers,Local Union ' 173,738 So.2d 953;954-55(Fla.2d DCA 1998)-copy attached as Appendix"2": • A although parties must negotiate wages,hours and terms and conditions of [ l �P g g � . . . employment upon a proper demand,they cannot be compelled to agree to any particular'proposal covering discharge and discipline. Consequently, we reaffirm our prior decision in which we held that we cannot•require parties to a collective bargaining agreement to include a discipline and discharge provision in their contract.In re CWA, 4 FPER 14135 at 249 (1978) (parties cannot be compelled to agree to discipline or discharge proposals). COST ANALYSIS: .Arbitration is a protracted and costly process.By way of example,the City submits Arbitrator William Serda's$7,000,00 invoice for conducting a one day hearing(plus nine study days) challenging of a tetter of Reprimand,a level of discipline that would be classified minor under the City's proposal. Serda's invoice is attached as Appendix"P.These types of expenses are avoided by the City's proposal.The City's proposal still provides for arbitration of major discipline. - 16� 55 I WAGES CITY PROPOSAL: A. Notwithstanding any wage adjustment in fiscal year 2011-12 received by an:.employee prior to ratification or imposition of this agreement,the maximum wage increase for each bargaining unit employee for fiscal year 2011-12 will be 2%. B. In the event an employee has received an adjustment in excess of 2%,that employee's base wage.shall be adjusted(increased or reduced)on the earlier of(1)the date of ratification, (2)the date of imposition,or(3)9/30/12,to reflect a base wage of 2%over the employee's base wage on 9/30/11. C. There will be no firture base wage adjustments after 9130/12 except those provided for m the next collective bargaining agreement or Memorandum of Understanding between the City and the Union. D. No employee will receive a base wage adjustment or lump sum payment that would take their compensation over the maximum for their.position. • CITY JUS'FH','ATTON: The City's wage proposal must be viewed against the economic backdrop that has negatively impacted revenue but has failed to place any restriction restraints on wage and benefit . f :increases. Much was.said at the impasse hearing regarding the City's option'that there was intentional delay on:the part of the Union in negotiating changes to the wage and benefit provisions of the Collective Bargaining Agreement. As noted during the hearing,the City has continued to honor the status quo which has resulted in base wage increase,additional cost to the City to provide health care coverage for the employees,and the increased City contributions associated with the flawed pension plan. In spite of the physical challenges,the City's proposal still provides for a two per cent(2516)base wage increase for the current fiscal year. That base wage increase will have continuing impact in the next fiscal year which will be the subject of the next round of collective bargaining. The City's proposal does not so much reflect fiscal peril as it reflects-fiscal responsibility. - 17- 56 COST ANALYSIS: Bargaining unit employees received wage adjustment that on average 3.7*.' See cost analysis sheet attached as Appendix.."V. The City's 2%base.wage increase proposal will result in an annualized increase in bargaining unit employee compensation of approximately $52,692.00. Since the 2% increase is to,an employee's base pay, the cost is reoccurring. The current compensation formula is driving base wages up on average nearly 332%per year;a rate. which the City believes is unsustainable.In addition to the 3.72%average base wage increase the City has also paid out approximately $150,000.0 in.lump•sum payments to bargaining unit employees who have reached top out pay who-are entitled to additional lump sum bonuses above top out pay. As discussed in the hearing,some employees have already reach their 2011-12 fiscal year anniversary and have.received their merit based wage adjustments; some of which exceed.the City's 20 o offer. Although those employees will see a prospective reduction in their base wage, the City is not seeking to recover any wage already paid to those employees who received their base wage adjustment this fiscal year.To clarify,these examples are offered: Example 1: An employee paid$10.00/hour received a 3.8%inerease'on.II/l/11. Based on performance, the employee's hourly rate was increased to $10.38/hour. The employee has been paid an additional$15.20 per week since the adjustment($.38X40). On implementation of the City's proposal the employee's hourly rate would be adjusted to $10.20;•the additional $15.26 per week was receiving would be lowered to an additional $8,00 per week. The City's proposal is still an increase in pay albeit at a slower accruing rate. Example 2:A$10.00/hour employee who does,not reach their anniversary date until after ' implementation of the City's proposal will have their hourly rate increased to $10.20/h6ur on their anniversary date;earning an additional$8.00 per week thereafter. Example 3. An employee who has topped and has been paid a lump sum bonus will not receive an hourly rate adjustment(since they haven't received one) but may keep their current year lump sum payment. 57 INSURANCE CITY PROPOSAL: A.. The City currently provides and/or makes available health insurance coverage, as well as insurance covering workers' compensation, long-term disability, vision, dental.and life insurance. The City may select any insurance -carriers) in its sole and exclusive discretion as well as unilaterally changing the insurance carrier(s)including the right to, adopt self-insurance fiinding. The City may also unilaterally change the scope and/or level of benefits, provided that it does so for all City employees.. Prior.to changing insurance benefits the City will form an Insurance Advisory Committee to-study options for change. The Union will appoint 1/3 of the Committee. The Committee will meet as necessary within the time period established by the City Manager to complete the study. "Ihe Committee's consensus on 'options for changes shall be provided to the City Manager and to the Union by written recommendation. • B. Effective the first pay period following ratification of this Agreement(or (or impasse imposition)Employees shall contribute 15%of the health insurance premium cost. CITY JUSTIFICATION: Insurance costs-have increased unabated.There is no sign of stabilization or reduction on the horizon. The City cannot continue to absorb the annuaFincreases and at the same lime maintain the current level of benefits.Cost sharing by the employees can long be avoided COST ANALYSIS: The annualized cost of providing insurance to bargaining unit is$1,084,578.00.The bargaining unit currently pays$13,112 or 1.20%of the total cost.Under the City's proposal,the bargaining unit would pick up 15%($162,687.00)of their health insurance costs. 19 58 PENSION PLAN CITY PROPOSAL: A. The City's Pension Plan(Codified in Article III of Chapter 18 of the Code of Ordinances) will be amended to provide: 1. A decrease in the City's pick up of Member contributions as set forth in Section 18-29.6 by 3%. 2. The Employee's election to enter DROP shall be eliminated,effective 6/1/12. .3.* 50% of the Retiree (referring to future retirees; no -application to current retirees) contribution toward health insurance benefits as set forth in Section 18-1 shall be paid by the retired Employee. The retiree- contribution will increase to 100% of the cost of participation when the retiree becomes Medicare eligible_. 4. Reduce retirement annual service earnings multiplier to 1.6 for each year-of service to match FRS rate for service provided on and after 6/1/2012. . 5. Define Average Final Compensation as: • d For Employees who retire on or after 6/1/12 Average final.-compensation is the average of the 5 highest fiscal years. o Compensation (Earnings) means a member's•basic rate of pay from the City, exclusive of all overtime.pay, bonuses, travel or expense allowances, . longevity,and.any other extraordinary compensation. CITY JUSTMCATION: The City,like other local governmental agencies, is in the midst of a fiscal-challenge as the result of an unsustainable local pension plan. In a series of recent articles the Miami Herald exposed-the "pension bonanza" that is "bleeding cities dry'.' (using Herald terminology). The Herald articles are not specific to,nor does it mention the City; however, it serves as a valuable backdrop to issues that the City is attempting to address in its Pension reform proposal. The Magistrate's attention to directed to the Discussion of Valuation Results section of the GSG (Pension Plan Actuaries) annual .report (City Exhibit 1, Tab 8). The City's cash- contribution to the plan is projected to rise from$1, 043,344(46:57%of payroll)to$1,279,239 (73.59% of payroll. The actuary further cautions (page 3) that "the employer contribution rate -20- 59 will increase approximately 19% of covered payroll" over the next five years. Plan reform. cannot wait. COST ANALYSIS: Elimination of the DROP(there is a corresponding elimination of bonus payouts and additional FRS contributions)plus reducing the City 16.08 %pickup of the employee contribution to 13.06%(with corresponding increase of actual employee contribution from 3.66 to 6.66%)will result in an annual savings to the City of$293,0 10..00. -21 - 60 . i PAID TIME OFF CITY PROPOSAL(modified): ' A. Effective September 30, 2012, all non probationary Employees will.receive Paid time Off (PTO) to use for vacation, illness, caring for children, school activities, medical/dental 'appointments, bereavement leave, non-designated religious holidays, personal, business, or emergencies.Employees will have individual responsibility to manage their paid time off. B.� PTO will accrue each pay period based on regular hours worked based on an assumed 2080 per year. It is up to each Employee to allocate how they will use it, for vacation, illness, caring for children;school activities, medical/dental appointments, leave, personal,business, or emergencies.The City may reject a-request for PTO if the absence of the employee will cause an operational hardship.An Employee must use any accrued PTO prior to being granted any unpaid leave. C. The amount of PTO accrued each year at the rate of.1-hours of PTO earned for each hour actually worked or is on approved leave in a forty(40)hour pay cycle. • . D. The maximum accrual of PTO is 500 hours.$ E. PTO is not earned for hours worked beyond an Employees. regular schedule or on overtime hours.G. After an Employee has successfully completed 6 months of continuous service PTO may ( ' be taken as earned and is retroactive to theix start date. H. On voluntarily.separation, layoff or zetirement from employment, an Employee will be' paid.fifty (50%) of"the accrued PTO-up-to a-maximum of 500 hours. Employees- who are terminated from employment for disciplinary reasons receive no payout of PTO. I. On conversion to PTO accrued leave hourly balances will converted to PTO at the rate:of 1: 35. L Employees must use 120 hours of PTO per year with no less-tham 40 hours being taken consecutively. Employees with less than 120 hours of accrued PTO must use all accrued. time 'The modification reflects return to the City's initial PTO proposal following Union rejection of a modified proposal which provided a higher cap on accruals and a higher conversion factor for employees with longer tenure. Had negotiations continued,the parties could have worked out language for those employees whose adjusted bank of time would have exceeded 500 hours;such as priority to use those hours,payout,ect. -22- 61 annually. In the last.three months of the year, the City may schedule an employee off if the ! employee has not otherwise scheduled time off to achieve the required 120 hours off. . CITY JUSTIFICATION: The City proposes to wrap all paid time off categories into one category as'Paid Tune Off (PTO).' Since the member will.responsible for the use of their own time to be.used as the member sees fit, this is considered:a benefit, as such, and the amount of current time will be .' reduced. This position is supported by the existing"bank"of time on the books,which is valued at more than $500,000. The accrued amounts would accelerate be even higher, but the-City "buys bpele'vacation.(see City Exhibif 1,Tab 4,pg 45 and Tab 5,pgs 32-33). Dania Beach Unibn members,those who are new, currently receive 208 hours a year for all categories paid time off. Veteran employees receive 288 hours of paid time of£ • The administration-proposes to set the annual amount of PTO at 208 hours, which is.1 . for each hour worked(assuming a 2080 hour annual schedule). PTO would not include holidays;but would include other types of leave. .Methodology • Union's contract time off was compared to other public sector agencies and'private organizations. Data was derived from the City of Dania Beach Civil Service Code and the Department of Labor's Bureau of Labor Statistics National Compensation Survey, March 11 ' 2011 (Tables 34.-38). Conclusions ® Dania Beach AFSCME members-receive paid time. in 'amount equal to that of other public.sector employees for those new employees(1-5 years). a AFSCME members receive more paid time off than other public sector employees for veteran employees. ® AFSCME members receive .considerably more paid. time. off than. private sector employees for both new and veteran employees. Current City of Dania Beach Paid Time Off by Category Time off Type New.employees Veteran employees (1-5 years of service) • -23- 62 Sick 12 12 Vacation 10 20 PERSONAL 3 2 Safety 1 1 Total 26 days 36 days Total by hours 208 hours . 288 hours (8 hour day) Holidays 11 days. . 11 days Total Time off 37 days 47 day including holidays Paid time off is given for bereavement,Jury dy,military taryleav•e and union activity.: . • Type of Time Dania-Beach Public Private Off new/vet. new/.vet Sick 11 12 8 / 9 ' Holiday 37 / 47 .11 / 11 8 / 8 Vacation 15 / 22 14 / 19 Total Days 37./ 47 37 '/ 45 30 / 36 -24- 63 SENIORTI'Y CITY PROPOSAL: A. Seniority shall be defined as the total length-of service for the CITY commencing with date of full time employment. Seniority shall continue to accrue during all'types of approved compensable leave. B. Employees shall lose their seniority as a result of the following. 1. Termination 2. Retirement 3. Voluntary resignation . 4. Involuntary layoff exceeding twelve(12)months . 5. Failure to report to the Human Resources Director intention of-whmung to work, within five (5) days of receipt. of recall, as verified by certified mail, return • receipt. • 6. Failure to report from military leave within the time limits prescribed bylaw. T. Failure to retum from an authorized leave of absence upon the expiration of such leave. CITY JUSTIFICATION: The City withdraws its proposal and agrees to the language in Article 33 of the previous CBA. . -25- 64 HOLIDAYS(modified) CITY PROPOSAL: A. The following days shall be observed by employees as holidays:' New Y ear°s Day Markin.Luther King Junior's Birthday Day President'.s Day Memorial Day Independence Day Labor Day Veterans' Day Thanksgiving Tray Day after Thanksgiving Day Christmas Day Christmas Eve • B. Holidays must be taken.as they occur and may not be accumulated. The Employee must work the day before-and the day after.each holiday.to be eligible for holiday pay with the exception of normal days off or excused absences. An illness the day•before or after a holiday will be considered excused when a -doctor's note is provided. In the event of an wexeused absence-before or after consecutive paid Holidays, the Employee will be-docked for one paid holiday. C. ' All Employees shall be allowed to use PTO for religious reasons,including but not limited to attendance or participation in services for Good Friday, Passover, Yom Kippur, Rosh Hashanah, or other recognized religious days. Regular part-time Employees shall be granted holiday pay on a prorated basis. If a holiday falls. on a regular day off, the Employee shall be scheduled for a shift off during-the same pay period, or shall be credited with'additional six (6)hours of PTO for each holiday worked. D. Employees required to be on regular duty on 'legal holidays. shall lie paid•1 Y2 ' times their base hour rate for each hour worked on the holiday. -26- 65 holiday is eight $ hours of an fim plo ees For compensation.purposes the monetary value of a hoh y gh ( } p y base rate of pay. CITY JUSTMCATION: The C.ity's proposal will result in uniformity of benefits by establishing that each holiday is equal to eight •(8) hours of pay. Additionally, as noted in the-example within the proposed language, employees will not be paid for a holiday that falls on a day the City is otherwise closed. -27- 66 LAYOFFS CITY PROPOSAL: A. The following criteria will be utilized in a•Retention Matrix to ascertain the order in which Employees will be laid off. Employees will be compared with other Employees with the same job title in the same department. The Human Resource Department will compile'the Matrix based on information in the Employees' official personnel file. B. The matrix is comprised of five criteria as follows: I. Seniority: Must be most recent continuous. service, without any disciplinary actions or below expectations/needs improvement evaluations,as follows: .0-3 0 • 4410 1 11-15 2 j .16-20 8 ! >20 4 2. Performance: Points will be awarded for satisfactory .or above standards ' performance or deducted for below standards performance,based on each merit rating(0- 5) .on the overall evaluation for the last three (3) merit-evaluations. Points will. be awarded L 3. Disciplinary Action: Deductions will be based on disciplines for the past five (5) years,and must be in the Official Personnel File,-25 Point maximum,as follows: Written Counseling -1 Point Written Reprimand -3 Points Suspension 4 Points -28- 67 Iuvoluntary Demotion -5 Points 4. Additional Skills or Training: Xis possible that an Employee has additional training courses, certification or licensure of particular value to the City which is related to the Department's goals and 'objectives. If applicable, the Employee, through their department head should provide justification for review by the Human Resource Manager of the training course, certification or licensure. -A maximum of 5 points are possible, one point for each certification, licensure or completed training course, above the minimum qualifications of their job 5. Veterans' Preference: In accordance with the Florida Statutes, qualifying veterans ' - ' are entitled to preference in retention;therefore,veterans will be given additional points. Eligible veterans will receive 1 point or disabled veterans receive 2 points,which will be added to-their other points.: 6. Total Points: The•highest total points determine retention and the lowest total points determine layoff. In the event of a tie in total points,preference will first be given to an eligible veteran, and then, if still necessary, evaluations for the past 3 years will be used as a tiebreaker.For tie breaker purposes,the last evaluation has more weight than the one. before it and so on until the tie is broken. CITY JUSTMCATIUN: The City's position is articulated in the proposed language which favors merit over seniority. The Union's proposal is old fashion layoff ruled by seniority and gives no consideration to merit. The Union proposes to use seniority in+the event of job elimination. The City's proposal gives limited Weight to seniority. Seniority counfs for only three (3) of the fifteen (15) total points considered in ranking employees for purposes of retention- The City's proposal expands on the current language of the Civil Service Administrative Code, Rule 17.(See City Exhibit. l,•Tab 5, page 55-56) which provides: The order of layoff shall be determined based on efficiency and seniority.The Human Resource Diurector shall -29- 68 prescribe the method of computing efficiency and seniority and shall prescribe the relative weighting of each. The City proposal eliminates seniority based bumping rights which can create cross departmental disruption. By way of example: there is no benefit, save to the employee with greater seniority, when a six year employee with disciplinary problems in one department can bump a five year rising star employee in another department; simply Based on seniority: The City's proposal would avoid that unwanted result. -30- 69 CONTRACT CONSTITUTES ENTIRE.AGREEMENT OF THE PARTIES CITY PROPOSAL: A. Except as specifically provided herein,neither party.hereto shall be permitted to reopen or renegotiate this Agreement or any part of this Agreement.This Agreement contains the entire agreement of the'parties on all matters that have been,or could have been negotiated by and between the parties prior to the execution of this Agreement. B. Prior memorandum of understandings or letters of understanding are extinguished by this agreement. CITY JUSTIFICATION: See City Justifikation section of Prevailing Rights and Hours of Work and Overtime. -31 - 70 COLLAT>�RAT,DOCUMENTS CYTY PROPOSAL: A. This Collective Bargaining Agreement does not exist in a void.Provisions of the City's Administrative Rules, Departmental Rules, and other policies .established by resolution or ordinance (collectively referred to as collateral documents) are applicable to,bargaining unit members unless the terms of said collateral documents conflict with the terms of this Agreement, in which case the terms of this Agreement shall control. B. The.non-monetary provisions.of the City's Civil Service Administrative Code "CSAC" (Ordinance.2004-019) are applicable to all bargaining unit Employees except to the extent that a particular subject matter is addressed herein, in which case the provisions of this Agreement shall prevail of the CSAC. C. Should the City want to amend or modify any provision of the CSAC that effects wages, • hours, terms and conditions of employment, it shall provide notice and a copy of any such amendment or modification to the Union no less than 30 days prior to the 'proposed implementation of- the amendment or modification. -If the. Union requests bargaining, . implementation of the change shall*be delayed until such time as the City and Union.complete the bargaining process. . CITY JUSTMCATION: The City's justification is set forth in the'first paragraph of the proposal. -32- 71 TERM OF AGREEMENT CITY PROPOSAL: A. This Agreement shall be,from the date.of ratification by both parties and shall remain in full force and effect to the 3CP day of September 2012. B., No base wage increase shall be implemented for Bargaining Unit Employees, beyond September 30, 2012 except as piovided in a subsequent collective bargaining agreement or other' interim document ratified with the same fomm uties as flus•Agreement. C. The CITY and the UNION agree to commence bargaining for.a.successor agreement on or about June 1,2012. . CITY JUS IEW CATION: Fiscal and operational'umeitainties favor a short term agreement and greater flexibility to address the changing economics of local government.Long term:agreements add to-a false sense • of entitlement on the part of the public employee. i . -33- 72 HOURS OF WORK AND OVERTIME 'CITY PROPOSAL: A. Employees will be scheduled to work 40 hours in a work cycle. The work cycle is seven (7) days. Employees shall work overtime when notified that overtime work is necessary. Overtime pay at one and one-half(1 %2)times the basic pay will be paid for all hours actually worked over forty(40)-hours in any work week. B. Department Heads shall determine the start and end time of a one (1)hour unpaid lunch . period for each Employee. C. The City may decrease(flex)th6 number of hours an Employee works in a work week to avoid incurring overtime payments by no more than three (3) hours. The City will not flex an Employee's hours more than once in any calendar month. D. Only hours actually worked count toward determining whether an Employee has worked 40 hour in a work cycle and is thereafter entitled to overtime pay. CITY JUSTIFICATION: A hand full of employees have been permitted to work without taking breaks and thereby end their work day thirty minutes early while others continue to work. This is a carry-over practice from.a 2006 memorandum from a previous City Manager(See City Exhibit 1. Tab 13) that essentially creates two classes of employees(those hired before 5/24/2005-with an establish practice before that--and those hired after). There is a residual negative impact on the-business operations of the City as the work force is partially reduced a half hour before the end of the true work day. Equally important and as reflected in the C.F.R. rule noted below,work day breaks "promote. the efficiency of the employee"; a benefit not realized when an employee works ' without break and ends their day earlier than other.employees. The City's proposal is intended to .extinguish the past practice. See additional comment under Prevailing Rights section. The City's proposal is in full accord with controlling Federal law and regulations regarding hours of work and overtime.As noted in 29 C.F.R.s. 785.18: •-34- 73 Rest.periods ofshort duration,running from 5 minutes to about 20 minutes,are common in industry. .They promote the efficiency.of the employee and are customarlly paid for as working time.They must be coimted as hours worked. Compensable time of rest periods may not be offset against other working time such as compensable waiting time.or on-call time.(Mitchell v.Greinetz, 235 F. 2d 621, 13 W.H.Cases 3 (C.A. 10, 1956);Ballard v. Consolidated Steel Corp., Ltd, 61 F.Supp.996(S.D. Cal. 1945)) -35- 74 PROBATIONARY PERIOD CTTY PROPOSAL: A. All newly hired or rehired Employees shall be subject to a probationary period of-one(1) year. B. All promoted Employees shall be subject to a probationary period of six (6) months. When a promoted Employee has not successfully completed probation the Employee may return to the Employee's former-if it-is.vacant or, if not vacant, offered another vacant position for which the Employee-is qualified.If no position is vacant the Employee will be laid of. C. Probationary periods may be extended only by a written tri party agreement of the Employee,the Union and the City. CITY JUSTIFICATION: • The foregoing sections"A"and"B"represents the current probationary periods. Subsection"C"-is new and requires the City,Union and employee to agree to an extension of an employee's probationary status.This change reflects the City's commitment to discuss probationary-issues with not only the employee,but with the employee's bargaining agent. Inclusion of"C"should eliminate any suggestion of direct dealing by the.City and also provide the.employee with Union assistance in dealing with poor probationary performance issues. i i -36- 75 EMPLOYEE EVALUATIONS CTrY PROPOSALc ' A. Performance evaluations will be conducted annually: Evaluations are not subjeet to : grievance. CITY JUSTIFICATION: The right to evaluate employees is a managerial prerogative absent use of the evaluation to determine compensation (merit pay eligibil ty). The City's wage proposal is not tied to evaluation as las been the case in the past. Since the means and methods of conducting an evaluation is reserved*to management, challenge by means of grievance is not available as disagreement over an evaluation does not involve interpretation or application of the collective bargaining agreement. -37- 76. PREVAILING RIGUS CITY PROPOSAL: A. There are'no past prractices which that monetary in nature, except thbse expressly set forth in this Agreement. It is the intent of the parties to identify and incorporate into this CBA all monetary benefits. CITY JUST.ITICATION:. After years of negotiation, the City and the. Union are clearly able to identify the monetary benefits that inure to the benefit of the bargaining unit employees;there:is no reason to oppose the language proposed by the City.The proposed language adds certainty and.is intended to limit, if not extinguish,the chance of post bargaining disputes arising from pasti practices that are monetary. Once included, the CBA becomes the source document for the City Commission to use when appropriations to fund the CBA are considered during each-year's budget process. a 38.. 77 OTHER E"ASSE ISSUES: The Unioes April 5,2012 letter to the Ma&trate.disclosmg impasse issues seems to list every article as being open for a recommendation.That being the case,the City's position on. articles not addressed above is as set forth in City ExInbit 1 Tab 21. CITY JUSTIFICATION. The City's position regarding the articles the Union asserts were TA'd before November 1,2011 was discussed at length at the hearing but is explained in detail in the two City letters found in City Exhibit 1,at Tab 12. _39_ 78 CONCLUSION The Unioes impasse position rests in large part in perpetuation of the stale Ianguage'of the 2005-2007 expired CBA. At the impasse hearing,the Union doggedly*rehashed its premise that Articles tentatively approved in,2008 and 2009•were somehow etched in stone and must be momporated into the next CBA. The Union asked the Magistrate to ignore the City's July 12, 2011 letter to Andrew 'Wjeltman (The Unioes since departed lead negotiator) in which Collin Domielly,.the Assistant City'Manager;requested that the Union disregard a June 13 letter from former City negotiator.,James Crosland-since that letter miseommunicated the City's view on the status of negotiation. (City-Exhibit 1 tab 12). The Union also asked the Magistrate to ignore the City's.November 18, 2011 communication confirming the City's position regarding what the Union referred to as the "status quo CBA In unequivocal terms the City advised "the City withdraws its TA's on'all previously TA'd articles. (See November 18,2011 letter; City Exhibit 1,tab 12). • The City's proposals to change long accepted'boiler plate language in the CBA are not changed simply for the sake of change. The City's proposal eliminates phrases such as"it is agreed that the above provisions will be handled in a timely and expeditious manner and will not be abused or hamper the efficient operation of any department or employee within. City government." This type of flowery*language contains immeasurable'standard "timely and expeditious" which have no place in a modem-business agreement and constitute in the end, many words but no substance. Other provisions'•of the, old contract, such as the non-discrrnination clause, are. unnecessary and,have no real value to the parties in application. By way of'.example; The . Magistrate is well aware that conduct or actions which.are discriminatory in nature i5 actionable under City, state and federal law without regard to collective bargaining language. The mere inclusion of the unnecessary non-discrimination clause suggests that the parties could negotiate around the legal prohibitions against discrimination. The-same is true.for the No Strike article which is completely unnecessary as Florida law prohibits public employees and public employee organizations participating in a strike against a public employer. The City's proposal before impasse was to remove the article,'the Union agreed but now does an about face and insists that -40 79 • APPENDIX • « l » 80 .169 3:52PO AFSCME Region .5 NO 9265 'P.. 2 MEMORANDUM OF UNDERSTANDING The City of Dania Beach ("City") and AFSOME, Florida.Council 79, L'ccal 3535 CUnion") enter.into this memorandum of.understanding, and agree as follows: A. , The parties agree to a one year exteiision of the Collective Bargaining Agreement approved by the Dania Beach My Commisslon.through Rosolution 2005-ou , which said agreement.expired September $0, 2007 and will be extended h'Se ember 30 2003 sub'ett t e f ilo ' revisions:ended thrQu pt . , o the a rnn . 9 1 n9 a. Article 35 Wages,Paragraph 36.3 shall l5e.revised to read as follows: •"36.3 Upon ratification of this Memorandum of Understanding, employees hired . before October 1. 2067 and on the payroll upon ratification of this agreement will receive a 2.5% cost of living salary increase fully retroactive to October 1,2007,with the retroactive wages being subject io- pension. Emplayees-hired on or after October 1,2007 who remain on the City payroll as of ratification of thi$ agreement will receive.a .5% COLA -retroactive to October 1,2007 with the;tetroactive.wages being subject to pension, " 2. The Union agrees that: the City rnay -adopt any'necessary ordinances to . implement this Memorandum of Understanding. AGREED this day of ;2009 For the City of Dania Beach: F r the l lnion: ti Mayor Anne Castro J p$ine e,Beaii egionai Director.Council 79,Chief Negotiator,AFCSMF.Local 3535 53 81 1 RESOLUTION NO.2009-119 A- RESOLUTION OF THE' CITY OF DANIA -BEACH, FLORIDA; AUTHORIZING THE PROPER •CITY . OFFICIAIS TO EXECUTE A MEMORANDUM.OF UNDERSTANDING AMENDING THE COLLECTIVE BARGAINING.AGREEMENT EXISTING BETWEEN THE CITY OF DANIA BEACH AND THE DANIA BEACH GENERAL EMPLOYEES ASSOCIATION AWME LOCAL 3535 -AFL-CIO COVERING THE PERIOD OCTOBER 1, 2007 TO SEPTEMBER 30,2008;-PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE.- BE IT RESOLVED. BY THE CITY COIMINUSSION OF THE CITY-OF:DANIA ' BEACH,FLORIDA: Section 1. That the Memorandum of Understanding Agreement between the City of Dania Beach and AFSCME Local 3525, wbich agreement is attacbed and made a part of this Resolution is approved and the appropriate City officials are authorized to execute it. ecdon 2. 'That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent.of such conflict. • Section 3. That this Resolution shall be ld force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on June 23,2b09, ANNE CASTRO MAYOR-COMMISSIONER ATWST, 4 LOUISE STILSON,CMC CITY CLLRK APPROVED AS TO FORM CORRECTNESS: BY: TH MASWRO. CITY ATTORNEY • 82 • APPENDIX «2 » 83 Board*of County Com'rs of Sarasota County v.Citrus,...,738 Sold 953(1998) • 163 LR.R.M.(BNA)2252,23 Fla.L Weekly D2555 738 Sozd 953 District Court of Appeal of MoHda, Second District • ' Attorneys and Law Firms BOARD OF COUNTY COMMISSIONERS ' *9$3 Jorge L.Fernandez,CountyAttorney,and William M. OF SARA.SOTA COUNTY,Appellant, Rossi,Assistant County Attorney,Sarasota,for Appellant. V. CITRUS;CANNERY FOOD PROCESSING& Sharon.Burrows, Assistant County Attorney, Palm Beach ALLIED WORKERS,DRIVERS,WAREHOUSEMEN County Attorney's Office,West Palm Beach,forThe Florida , &HELPERS,LOCAL UNION 173 and Florida Association of Counties and The Florida.Association of Public Employees Relations Coimission,Appellees. County Attorneys,Amid Curiae. No.97-05027.'l Nov.20,ig98. Stanley E.Marable,Sarasota,forAppellee Citrus,Cannery Food Processing&Allied Workers,Drivers,Warehousemen Board of County Commissioners appealed final order entered &Helpers,Local Union 173. by Public Employee Relations Commission (PERC) that determined'that board committed unfair. labor practice_ Joey D. Rix, Public Employees Relations Commission, in collective bargaining process. The District Court of Tallahassee, for Appellee Florida Public Relations Appeal, Casanueva, J., held that board possessed right.to Commission. seek agreement excluding discipline issues from collective Opinion bargaining agreement. • CASANUEVA,J. Reversed and remanded. The Board of County Commissioners of Sarasota County West Headnotes(2) C Board') appeals a final order entered by the Public Employees Relations Commission C PERC")that determined it committed an unfair labor practice 'in the collective [1] Labor and Employment bargaining process with the Citrus,Cannery Food Processing . ,D— Discipline and Allied Workers,Drivers,.Warehousemen and Helpers, : Board of county commissioners possessed right Local Union 173 e Union'). PERC ordered the Board to to seek labor agreement excluding discipline cease and desist from imposing a contractual provision issues from collective bargaining agreement. which excludes discipline the collective bargaining West's F.S.A.§447.501(1)(a). agreemenrs•gdevance'and arbitration procedure.We agree with the "Board's contention that it did not commit an unfair labor practice when it elected to exclude (2]. .Labor and Employment employee disciplinary matters from the collective bargaining• w- Particular Subjects of Bargaining agreement.Accordingly,we reverse the final order issued by PERC. Board of county commissioners•did not engage in unfair labor practice by seeking agreement On'February 7, 1995,. the Union was certified as the excluding discipline issues from collective exclusive bargaining representative for certain Sarasota bargaining agreement;board negotiated from the .County employees. Negotiating sesdions followed during beginning its desire to exclude discipline from which the Union and 'the County i reached tentative grievance and arbitration procedure of collective agreement on several issues. Whether the final contract bargaining agreement,and there was no finding would include provisions relating. to employee *954 •that board sought to require.union to agree to- discipline was a major area of disagreement. The County's , board's position as a precondition to bargaining position throughout the*collective bargaining process was • on mandatorymatters.West's F.S.A.§447.50](1) that employee discipline matters would not be contained in (a). VVestlawNeW O 2012 Thomson Reuters. No claim to original U.S.Government Works. 1 84 �. Board of County Cbm'rs of Sarasota County v.Citrus,...,738 So.2d 853(1998) 163 L.R.R.M.(BNA)2252,23 Fla.L.Weekly D2556 the final agreement and would remain the sole province of by an impartial;'neutral arbitrator. However, this section the Board because the Board had in place•a civil service does not mandate which subjects must be included within disciplinary process'to which all other employees were •a collective bargaining agreement. 'While the Legislature subject.The Board wanted to keep all employees within the has mandated that each public employer and bargaining same disciplinary system.Just as fervently,the Union sought agent must negotiate a grievance procedure, it has nqt, in the inclusion of these issues in what would be the first-ever section 447.701 specified which issues must be included contract between the Union and the Board, in the.procedure." American Federation of State, Count), 8 Municipal'Employees, Local 1363 v. Florida Public In August 1996, the Union declared that the parties had Employees Relations Comm'n,430 So.2d 481,482 (Fla. 1st reached An impasse. The parties then began the section DCA 1983). The right to exclude issues from a collective 447.403, Florida Statutes (1*), procedures•to resolve bargaining agreement has been recognized by our supreme the outstanding impasse issues. First, a hearing was held .court. In City of Casselberry v. Orange 'County Police before a special master.Before and during this hearing,the' Benevolent Association, 482 So.2d'336, 340 (F1a.1986), County continued to be willing to negotiate and, in fact, the supreme court stated "a union and public employer' the parties resolved several outstanding issues during this Would be perfectly within their rights to voluntarily exclude time. Following the special master hearing, the Board, in some aspect of their collective bargaining agreement from accordance with section 447.403(4),held its own impasse section 447.401 and utilize exclusively the dispute resolution resolution herring and decided which versions of the machinery of a civil service board.All that would be required provisions at impasse would be part of the finial agreement. *955 is a mutual agreement to do so"This conclusion is in* Thereafter,the County submitted the final Board-approved accord.with PFRC holdings.PERC has stated: written collective bargaining agreement to the.Union*for ratification. The final agreement excluded the issues of [A)lthough parties must negotiate wages, employee discipline..The Union neither ratified nor rejected . hours and terms and conditions of •, the collective bargaining agreement.Rather,it filed an unfair employment upon.a proper demand, they ' labor practice charge against the Board.After a full hearing cannot be compelled to agree to any particular before a PERC hearing'officer,who made a recommended proposal covering•discharge and discipline: report,PERC resolved all claims,save one,asserted by the Consequently,we reaffirm our prior decision Uiuon in favor of the Board.We now review the remaining. . inwhichweheldthatwe cannot requirepartie's claim,PERC's.finding that the Board must include the subject to a collective bargaining agreement to include of employee discipline in the collective bargaining agreement a discipline and discharge provision in their so that disputes involving discipline are resolved through the contract.In re CWA, 4 FPER 14115 at 249 agreement's grievance and arbitration procedures. (1978)(parties cannot be compelled to agree to discipline or discharge proposals). fij The question presented is whether a section 447.501(1) (a) violation occurs when a public employer insists in the •, In Re.Petition for Declaratory State of Federation of State, collective bargaining process that it will not include employee County and Municipal Employees, Local 1363, 8 FPER ¶ discipline as a subject covered by the collective bargaining 13278(1982). agreement. If the public employees,'through their union, possess the right to include this subject in the bargaining 121 Therefore, we conclude that, in accord with long 2 standing judicial rind administrative law,the Board possessed' agreementunderPartIIofChapter447, then such a position the right to 'seek an agreement excluding discipline issues ' by the public employer would interfere with the public from the collective bargaining agreement, and, when such employees' rights and would constitute, by definition, an negotiations failed,the statute allowed the Board to impose unfair labor practice. Conversely,in the absence of such a right,there can be no unfair labor practice. such provision.See§447.403(4)(d).3 The Union does not possess the right under Part 11 of chapter 447 to compel the Section 447AOI does requite one provision in all public inclusion of discipline in a collective bargaining agreement. employee labor contracts,that there be a negotiated grievance In the absence of such a right,there can be no unfair labor, ' procedure for the interpretation or application of the practice under section 447.501. PERC's findings.of fact, • colledive bargaining agreement It further requires that supported by substantial competent.evidence, included that the final step of such a process be binding arbitration the County negotiated from the beginning its desire.to exclude WestlawNext'G 2012 Thomson Reuters.No claim to original U.S.Government Works. . 2 85 Board of County Com'rs of Sarasota County v.Citrus,...,738 So.2d 953(1998) • 163 L.R.R.M.(BNA)2252,23 Fla.L.Weekly D2555 discipline from the grievance and arbitration procedure of the not commit an unfair labor practice under section 447.503. collective bargaining agreement.There is also no finding that We also reverse the award of attorneys fee assessed against the County sought to require the Union to agree to its position the Board Upon remand,PERC shall consider whether it is as a precondition to bargaining on mandatory matter's,which appropriate to assess attorney's fees against the Union. -would have been an unfair labor practice under Casselbeny. Thus,the Board's.position on employee discipline and its final PARKER,C.-I.,and ALTENBERND,J.,Concur. action in resolving this impasse issue did not constitute an unfair labor practice:Id.at.340. Parallel Citations In view of the foregoing,we reverse PERC's final order and 163 L.RR.M.(BNA)2252,23 Fla.L.Weekly D2555 remand for the entry of a final order finding.the Board did Footnotes 1. For purposes of this opinion,reference to the"County"means the bargaiping agent for the Board. 2 Part H of Chapter 447 is comprised of sections 447.201 through 447.609 that all deal with public employees. 3 Section 447..403(4)(d)provides:`•"rhereafter,the legislative body.shall take such action as it deems to be in the public interest, including the interest of the public employees involved,to resolve all disputed impasse issues!' The Board,as the legislative body,even bas•the authority to impose disputed contractual provisions according to the matmer in which it resolved the impasse issues,albeit for only a year,even in the face of a negative vote by the bargaining unit employees to ratify the contract See§447.403(4)(e). End of Document ®2012 Thomson Reuters.No'ciaim to original U.S.Gbvemment Works. • W sllawNext ©2012 Thomson Reuters. No claim to original U.S.Government Works. 3 86. • APPENDIX « 3 » 87 William C. Serda Labor-N1anagemexit Arbitrator 463 Norlhemt 100 Street Ti ftbww.305 785 7760 Nami Shores,Florida.33138 2446 Fmfi nle: 305 756 7042 Email: wcserda&dLcom March 21. 2011 FILE: I----TUCK TO: Xenneth.•13. Bass (City of PP) TO: Christian Schneider (BTU) principal BTU Steward - PPCS. Cebtral City of Pembroke Pines 250.N.W. 218th Terrace er Schools Pembroke Pines FL 33029 Chart • • 12350 Sheridan Street Pembroke Pines, FL 33026 TEL: 954 322.3300• TEL: 954 829 3526 FAX: 954 322 3389• FAX: UNK TO: Shama H. Brid eman (City of PP TO: Steven H. Feldman BTU Attorney at Law Attorney .at Law Goren,Cherof,Doody & Enrol Broward Teachers Union 3099 East Commercial Blvd., $200 6000 North University Drive Ft. Lauderdale, FL 33308 Tamarac; FL 33321 TEL 954 771 4560 TEL 954 486 6250 FAX 954 771 4993 FAX 954 739 1803 INVOICE DATE: MA`LtCH .21, 2011 PLEASE, PAYABLE UPON RECEIPT TO WILLIAM C. SERDA, TRA14K YOU CASE NO. FMCS 10 .50139-3 Paulin Tucker- Brdward Teachers Union . and f�f City of Pembroke Pines Charter Schools. Grievance: Pauline Tucker, Letter' of Reprimand, ai DATE OF ARBITRATION HEARING: November 04, .2010 LOCATION'OF ARBITRATION HEARING: Pembroke Pines, FL ' DATE POST HEARING BRIEFS RECEIVED:' February 24, .2011 DATE OF THIS AWARD AND INVOICE: March 21, 2011 " • --------------- ---------. ------------------------------------------•-- • PAGE ONE OF TWO 88 ARBITRATOR SERDA INVOICE, 03/21/11 AWARD - Paulare Tucker PAGE-TWO OF TWO EXPENSES- OF ARBITRATOR: HE DAYS- I- - DATES: 11/04/2010' TEL CONF. -N/A . TRAVEL DAYS--N/A. STUDY DAYS--- 9 Review hea=:L ag cotes transcripts test3xnong, a h�-bits and relevant case ' h,istQr�,es, study brxeis. .Compose and devejap Award and remedy- TOTAL DAYS: 10'X.DAILY FEE ($700.00) = ARBITRATOR'S 'EE= A7.000.00 ---------------- ------------ -OTHER EXPENSES: TRANSPORTATION - Air Fare N/A N/A - POV Miles - Rental Car N/A • N/A . • - Parking HOTEL I�fi/A • N/A MEALS - - MI SC.; FEES, TOLLS & TIPS: TOTAL -OTHER-EXPENSES: -____ N A ---------------------- ----------------- ---^-_____ _ TOTAL ALL FEES AND EXPENSES DUE: $7.000:00 �a`e��F�ir�tak��r•�e�e�F����r�F�t�k�e�9k��F�'�e�k��Cdr�k�kdea��C3raF•�atide•��t�dea��'c9r3ea��•�.•�•��9e�F�e�Y�e+r�e��ede�sdede�ar�F�e�k DUE FROM BROWARD TEACHERS UNION $3,500.00 500 - DUE FROM CITY OF PENBRONE PINES $.g, ------ TOTAL $7,000.00 REFERENCE: CBA, ARTICLE 08, GRIEVANCE PROCEDURE,. ���`S- X' PAGE 8-2 i PLEASE, PAYABLE UPON RECEIPT. THUM YOU-. SS# 422 44 4227 03/2i/11 WILLIAM C. SERDA ARBITRATOR - DATE 89 • APPENDIX City of Dania.Beach May 2,2012 Wages Since the expiration of the contract and subsequent MOU dated June 1.6,2009,the AFSME members have continually received.annual merit wage increases per the contract Article 35. Resulting from an annual merit review,-the member receives an increase to their base pay up'to five percent. Members.who score high enough can receive an . additional cash bonus up to 5%. The bonus does not increase the member'.s base pay. The typical bonus when earned is.3%. The exception to the wage increase described above is those members'who are at . the top of the pay range. Those members received a one time"bonus in lieu of merit".percentage increase.,This bonus is calculated using the merit matrix and the bonus schedule that is.used for those within the pay range. The attached schedule represents wage benefits to.AFSME members for the past year. The average wage increase was 3.72%. 91 City.of Dania Beach Wages AIKENS,TRANECE A 3.80% AUSTI N FRANK T ' 4.00% BROWN LOUIS 2-.00% CASASANTA, DAVID S 3.40% COSTA, NATHAN J . NEW HIRE: 1/16/2012 CROSS JERRYLYN 4.40% D.ION, KRISTIN N 3.40% DOMINGUEZ YASBETH 4.40% FALZONE-TARRANT, CONSTANCE 4.600/6 BONUS IN LIEU OF MERIT FOURNIER, PETER 3:60% 3.60%° GILMOND;RUSSELL K 3.40% 3.40% . GRANT, MITC .ELL V 4.00% BONUS IN LIEU'OF'MERIT GREENE, DARREN-D 4:20% 4:20% HANSEN, DONALD 3.40% ' BONUS IN LIEU OF MERIT HARRIS RASHAD K NEW HIRE: 2/21/2-012 ISMAIL HAKEEM Q 11.40% 1.40% JAMES TAMMIE D' 8.00% 5% +3% BONUS JELASO MEGAN NEW HIRE: 04/23/2012 JOHNSON, ANTHONY 3.60% BONUS IN LIEU OF MERIT JOHNSON, JOANNE 3.60% BONUS.IN LIEU OF MERIT- JOHNSON, STANLEY 3.80% 3.80% . JOSEPH BENET 2.00%. 2.00% KENON FLOYD 0:060/6 10.06% • KIRBY, DONNA 3.63% 3.63% LAWSON, RACHELLE NEW'HIRE: 10/18/2011 MACE, EUGENE 3.60% 3.60% MCHELLON, DONAAL 1.40% 1.40% MO`NTALVO, BLADIMIR NEW HIRE: 08/23/2011 MOUSSIGNAC, DEBRA 4.00% 4.00% NADEAU, LARRY 4.00% 4.00% OSTROFSKY, WARREN 5.00% 5.00% PATRICK, LAWRENCE W 3.00% 3.00% PATRON; MERLE S 3.80% 3.80% PEREZ, FRANK NEW HIRE: 2/21/2012 PERRY, LEONARD H' 3.00% 3,00%. PETERSON, TERRY 8.00%, 50%+ % BONUS PLEMONDON, GLENN 2.000/d .2.00% POLLARD,ANTOINE 3.60% 3.60% QUEVEDO, VIVIAN M 4.40% 14.40% RIVIERE, JOSEPH A 3.60% 3.60% ROBERTS, THOMAS MNEW HIRE: 9/12/2011 RODRIGUEZ,-MICHAEL S 2:00% ' 2.00% RODRIGUEZ RICHARD 3.80% 3:80% SALGADO *JOSE F 3.60%. 3.60% SALTER, CAROL S 5.00% 5.00% SAUNDERS, JANICE L 4.40% 4.46% SAVAGE, JAMES R 8.00% 5%+3% BONUS • SLADE CURTIS 1.80% 1.80% SMITH, CATHERINE M PENDING May 2;2012 92 City of Dania Beach Wages • SO S . O MER , H WARD P NEW HIRE: 11/15/20.11 STEVENS, TANIA A 8.000/0 5%►-3% BONUS STUBBS,•DANIEL 3.60b/o 3.60% TAYLOR, CORRY G 3.60% 3.60% THOMAS,AHMAD 1.40% 1.40% ROCCOLI, PATRICK 2.00% . 2.00% UR-OW, BARBARA . NEW.HIRE: 04/1 612 0 1 2 WALTERS, LEROY A 3.40% 3.40% WALTON, ERIC J 4.40% WARWICK, PANSY 4.00% 4.00% WASHINGTON A WILLIS B 3.66% 3.60% YOUNG, DUANE L NEW HIRE: 11/28/2011 ZAPATA, MARLON 3.00% ' ' 3.00% AVERAGE INCREASES 3.72% May 2,2012 93 • APPENDIX « 5 » l � • City of Winter.Springs v.Winter Springs Professional,$85 So.2d 494(2004) 176 L.R.R.M.(13NA)2629,29 Fla.L.Weekly D2601 current levels until such*agreement was reached. 885 So.2d 494 West's F.S.A.§447.309.. Distript Court of Appeal of Florida, First District. [2] Administrative Law and Procedure CITY OF WINTER SPRINGS,Appellant, k:- Administrative Review v Agencies are bound to honor a hearing officer's WINTER SPRINGS findings of fact unless they are not supported by PROFESSIONAL,etc.,Appellees. competent,substantial evidence. No,iD03^3159• 1 Nov.5,2004. 1 Cases that cite this headnote Synopsis [31 Labor and Employment Background: City sought review-of decision of the'Publie 0- Impasse in General Employees Relations Commission (PERC) that found that Absent waiver, exigent circumstances, or city had engaged in an unfair labor practice by imposing a legislative body action after bargaining impasse, pay freeze on firefighters'union members and by imposing changes to wages,how,terms and conditions of a management rights article that had been amended after the employment cannot.be made without providing union declared an impasse. notice to the employee's bargaining agent and an opportunity to conduct meaningful negotiations Holdings: The District Court of Appeal,Hawkes,L,held before implementing the change. • that: 1 Cases that cite this headnotc [1]no waiver of union's bargaining rights occurred by city's implementation of pay freeze after negotiations reached impasse,and [41 Labor and Employment [2] city's submission of amended provision-for prospective 0- Impasse collective bargaining agreement to legislative body resolving• It is appropriate to declare impasse.in labor impasse was not an unfair labor practice. contract negotiations it after a reasonable period of negotiation,a dispute exists between the parties Reversed and remanded.. regarding.a mandatory subject of bargaining. Ervin,J.,concurred and filed separate opinion. West's F.S.A.§447.403(4)(c,d,e). Allen,J.,dissented and filed opinion. [5] Labor and Employment WestIleadnotes(7) 0-Impasse in General City's submission of an amended management rights' proposal. for collective bargaining [11 Labor and Employment agreement to the legislative body resolving the 0- Wages in General bargaining impasse between city and firefighters' No waiver of firefighters' union's bargaining union did not amount to an unfair labor practice; rights occurred by city's legislative imposition the fact that the parties waived the appointment of the pay freeze language contained in of a special master as a means of resolving the previous labor contract, after an impasse was impasse,and instead chose to proceed directly to reached during negotiations for a new collective resolution of the issues before the legislativebody bargaining agreement, and thus, city did not did not preclude either party from changing its . engage in unfair labor practices,where contract' position at impasse and submit such changes to stated that if no collective bargaining agreement the legislative body.West's F.S.A. §447.403(2) was reached, then salaries would remain at (a),(4)(a,b). WestlawNexr©2012 Thomson Reuters.No claim to original U.S.Government Works. 1 95 City of Winter Springs v.Winter Springs Professional,885 So.2d 494(20041 • 176 L.R.13 M.(13NA)2629,29 Fla:L.Weekly D2501 Procedural 8t Factual History 161 ' Statutes Oa Executive Construction Appellant and the Union have had a collective bargaining An agency's interpretation of a statute it is relationship since 1991:While previous CBA's were silent on chargedwith administering shouldnotberejected' the issue,the 1997 CBA provided that if the parties did not •. so long as its interpretation is consistent with the reach a new CBA by the time the current CBA expired,wages legislative intent and is supported by competent, would be"frozen"until a new CBA was reached.The"pay substantial evidence. freeze"language was renewed in subsequent CBA's through September 30,2001. 1 Cases that cite this headnote 1n September of 2001, the Union notified Appellant it wished to renegotiate several articles that had been included [71 Labor and Employment in previous CBA's, 'includin p g passible removal of the e- Impasse "pay freeze" language. During format negotiations for the Pursuant to statute regarding resolution of• 2001-2002'CBA, Appellant sought to continue the "pay impasses in negotiating collective bargaining freeze"language and adds management rights article.The agreements,parties are allowed to change their Union did not accept these proposals,and in February 2002, positions during impasse, whether'before a declared an impasse.The parties waived the Special Master special master or before a legislative body, process and no subsequentresolution was reached.TheUnion provided that the amended proposals do not touch argued the management rights article could not be taken to on a topic that has not been previously negotiated impasse because it waived the Union's right to bargain. at the bargaining table.West's F.S.A.§447.403. • Impasse Resolution Hearing Before the City Council On October 24,•2002,in accordance with section 447.403(4). Attorneys and Law Firms Florida Statutes, both parties submitted their positions and written recommendations for resolving the impasse *495 Jeffery E. Mandel and David A. Young, Akenman to the legislative body, and to each other.' Appellanfs Senterfrtt,Orlando,for Appellant. recommendations contained an amended management rights proposal that was more favorable to the Union.The proposal Tobe Lev, Egan, Lev & Siwica,P.A., for Winter Springs included a proviso that it was not intended to waive any of the Professional Firefighters, Local 329.6, Orlando, and Jack .Union's rights to impact bargain. E. Ruby, Florida Public Employees Relations Commission, Tallahassee,for Appellees. On October 29, 2002,-an impasse resolution hearing was conducted before the Winter Springs City Council.The Union Opinion maintained its objection to-the management rights article, HAWIC ES,J. but the Council ultimately adopted the amended version;the � . "pay freeze" language was again imposed for any hiatus Appellant, City of Winter Springs, appeals from a final following the 2001-2002 CBA. Though the resulting CBA orderofthePublicEmployeeRelationsCommission[PERq,. was presented for•ratification to the Union, 'it Was not *496 finding that Appellant committed unfair labor presented to the bargaining unit employees. practices by imposing"pay freeze'language on Appellee's, Winter Springs Professional Firefighters'[Union]members in Appellant Union then filed an unfair labor practice charge,alleging Appellant anew collective bargaining agreement[CBA]for 2001-2002,. violated section 447.SOI(1)(a) and (c), Florida and by imposing a management rights article that had Statutes by imposing the "pay.freeze" language and the management rights article through the impasse process. been amended after the Union declared an impasse. We After an evidentiary hearing,the hearing officer issued his • reverse PERC's final order on both issues and remand for a recommended order, finding the Union had no reasonable determination consistent with this opinion. , WestlavvNexr©2012 Thomson Renters. No claim to original U.S.Government Works. 2 96 • City.of Winter Springs v.Winter Springs Professlonal;885 So.2d 494(2004) 176 L.R.R.M:(BNA)2629,29 Fla.L.Weekly D2501 expectation to continued wage increases following expiration that a legislative body may not impose a waiver of bargaining of the 2000-2001 CBA.The hearing officer found the history rights.PERC's reliance is misplaced.In those situations there ' between the parties was more supportive of the"pay freeze" was an explicit waiver of the employer's obligation to bargain language as constituting status quo, and thus, the City'•s over wages, hours, terms and conditions of employment. imposition of the language in the 2001-2002 CBA did not Notably,Palm Beach Junior Coll.Bd.ofThv UnitedFaaulty violate the collective bargaining laws.However,the hearing ofPalm Beach Junior Coll.,475 So.2d 1221,1223(F1a.1985) officer found Appellant violated the statute, and therefore involved a management rights clause which clearly stated the *497 committed an unfair labor.practice,by imposing the employer was not obliged to bargain collectively.PERC also management rights article because the City's proposal had cites to a previous order.which held a party may agree to a been amended following declaration of impasse,and because waiver in prior contracts,but the party may not renew the it contained a waiver of the Union's right to impact bargain, waiver indefinitely.As a consequence,PERC concludes it is' irrelevant that the Union agreed to the pay freeze language in PERC then issued its final order, rejecting the hearing prior contracts,and Appellant violated its bargaining position officer's finding regarding'the "pay freeze" language, by imposing the"pay freeze"language because it contained and instead finding the imposition of this language in a waiver of the employees'bargaining rights. the 2001-2002 CBA constituted an unfair labor practice. Additionally, I,ERC .found Appellant also committed an. :*498 [3] The hearing officer is correct that wages,hours,. unfair labor practice merely by proposing an amended terms and conditions of employment are mandatory subjects management rights article because the amendment occurred of bargaining.4 See § 447.309(i) Fla.•Stat. (2002), and after declaration of impasse.PERC never reached the issue of Citrus,Cannery,FoodProcessing and Allied Workers v.City whether the management rights article contained a waiver of. of Sarasota, 29 FPER-1 87(2003). Absent waiver,exigent. the Unions right to impact bargain. circumstances, or.legislative body action after bargaining • impasse,changes to such subjects cannot be made"without . Imposition of the"Pay Freeze"Language providing notice to the employee's bargaining agent and an opportunity to conduct meaningful negotiations before [1) The court must determine whether imposing "pay implementing the change." See Citrus, Cannery, Food . freeze".language in a subsequent CBA following impasse Processing and Allied Workers 29 FPBR 187. resolution proceedings, constitutes an unfair labor practice within the meaning'of section 447.501(1)(a)and(c),Florida The disagreement between the hearing officer and PERC Statutes:2 seems to rest on whether the Union employees, as part of the status quo, established entitlement to continued receipt [21 Agencies are bound to honor a hearing officer's findings of wage increases when a CBA expired. PERC maintains of fact unless they are not supported by competent,substantial the employees had a right to continue the status quo and the. evidence.Belleau v.'Dep't ofEnviron.Protection,695 So.2d imposition of the"pay freeze"language waived this right to 1305,1307(Fla.1st.DCA 1997)(citations.oinitted).3 continued receipt of provided benefits.However,as noted by the hearing officer,the parties have repeatedly used the pay In the present case,the hearing officer found the prior CBA freeze" language in prior CBA's thus indicating the status expressly limited anniversary pay raises to the term of the quo, if any,was that the employees had no expectation of agreement.As a result,the hearing officer found persuasive continued receipt of wage increases once a CBA-expired. the City's argument that the anniversary pay raises had never become part of the status quo.Moreover,the hearing officer Here,the proposal contained the same"pay freeze"language found that both sides were aware pay raises would stop when that had been used'from 1996-200I. The hearing officer the contract expired; consequently, the employees did not. found the CBA's plain language merely continuedthe existing have a reasonable expectation that the annual raises would practice of freezing wages until anew CBA was reached.A continue. The history between the parties suggested to the waiver,if there was one,would have to be clearly stated.5 hearing officer that the "pay freeze" language was more A review of the challenged provision reveals there is nothing closely in line with the status quo. waiving Appellant's obligation to bargain,nor is there any provision ie4uiring the Union to waive its bargaining rights To support its order,PERC relies on some of its previous •6 over wage increases. • orders and.a Florida Supreme Court case for the proposition West[mvNkV©2012 Thomson Reuters.'No claim to original U.S. Government Works. 3 97 • I I City of Winter Springs v.Winter Springs Professional,885 So.2d 494(2004) . • 176 L.R.R.M.(BNA)2629,29 Fla:L.Weekly D2601 general and post-impasse negotiations in particular."City of [4] When a dispute exists over terms and conditions of -Miramar,7 FPBPL112357. employment to be incorpomted•into a CBA,the parties are entitled to have.the impasse resolved by a legislative body. It is clear the management rights article was a topic that had See § 447.403(4)(c)-(e), Florida Statutes (2004).7 ..It is previouslybeen negotiated at the bargaining table.To support appropriate fo declare impasse if,after a reasonable period of its finding that an unfair labor practice occurred when the negotiation,a dispute exists between the parties regarding a management rights article was amended after declaration bf mandatory subject of bargaining."United Faculty ofFlorlda impasse,PBRC relied on its own prior decisions recognizing. v. Florida Bd• of Education, 28.FPBR 133232 (2002). that"[an] insulated period begins when the'special master - Appellant did nothing wrong by maintaining its request to process is waived and ends when the legislative body resolves insert the language, and when the dispute could not be. the impasse."JacksonvilleAssn ofFireftghters,IAFF,Local resolved,the proper statutory process was utilized. 122 v City of Jacksonville, 15 FPBR 122327(1980). The City of Jacksonville case, however, held that parties were No waiver of the Union's bargaining rights occurred by prohibited from engaging in ex parse communications with Appellant's legislative'*499 imposition of the"pay freeze" the legislative body regarding the merits of their position language to the 2001-2002 CBA. PBRC erred by finding when the legislative body assumes the role of a quasi-judicial . Appellant had violated the collective bargaining laws by body.9 The record'is clear that no ex parse communication imposing the language, and thus, the final order must be 'was made by management to the legislative body.Appellant neversed.on this issue, sent by fax a copy of its written recommendations to counsel for the Union on the same day it sent them'to the legislative Imposition of the Management Rights Article body. [5) The second issue we must decide is whether PBRC erred We agree with Appellant that.PBRC's application of its • by concluding Appellant committed an unfair labor practice insulated period rule,_as applied to the facts of this case, by imposing a management rights article that was amended appears to be contrary to the statutory framework provided following declaration of impasse, in section 447.403(4)(a)and(b).Here,if tiie parties utilized a special master, who in turn, submitted a recommended [6] "[A]n agency's interpretation of a statute it is charged depision to the legislative body, *500 either party would with administering should not be rejected so long as its have had the right, under the statute, to reject the special interpretation is consistent with the legislative intent End is• master's recommendation and submit its own recommended supported by competent,substantial evidence."Cleveland v proposal to the legislative body as a means of resolving Florida Dept of Children and Families District:07 Seminole the impasse. Similarly, if the parties agreed to waive the Unit 55205, 868 So'.2d 1227,1229(Fla,I at DCA 2004).$• appointment,of the special master altogether;they had the. right,as provided in section 447.403(2)(4),toproceed directly PBRC concedes the facts of the case raise the "novel" to resolution of the issues before the legislative body.Clearly issue of whether a party can materially change its last that body has the same powers to conduct a hearing as does proposal presented before declaration of impasse, where the special master, and the same proposed changes in the the parties waived the appointment of a special master bargaining process could be submitted by either or both and the amended proposal was submitted to the legislative parties to the legislative body as could be made to the special body prior to the impasse resolution hearing. Appellant master during impasse. correctly notes that'PBRC itself has ruled that after.the special master process has been completed and the special It appears the legislature,by its enactment of the resolution master's recommendation issued, parties may change their of impasse provisions of•section 447.403,chose to provide positions before the legislative body without violating the an alternative to the special master process,whereby parties mandatory.duty to bargain in good faith pursuant to section can seek a resolution of their disagreements before the 447.501(1)(e), provided the position is s.topic which has public employer, acting in-its quasi-judicial role. It seems been previously negotiated at the bargaining table.See-City inconsistent, given the statutory framework, for PBRC to of Miramar v, Gen.Assn of Miramar Employees, 7 FPBR recognize that if parties utilize the'special master process • 112357(1981).'Otherwise,restricting parties from making to its conclusion,either party may then change its position any changes "would discourage both settlement efforts in at impasse' before the legislative body, as a means of Aiest[awNexr©2012 Thomson Reuters.No claim to original U.S.Government Works. 4 98 • City of Winter Springs v.Winter Springs Professional,885 So.2d 494(2004) 176 L.R.R.M.(BNA)2629,29 Fla.L.Weekly D2501 encouraging settlement efforts, but, if the parties instead Banldng and Finance,•346 So.2d 569, 579 (Fla. 1st DCA choose to waive such process,.they cannot later alter their 1977),as follows:- previously negotiated positions before the legislative body. Such an interpretation is inconsistent with legislative intent, [W]here the ultimate facts are increasingly and therefore,clearly erroneous, matters of opinion and opinions are increasingly infused by policy PERC's attempted distinction between the facts•in City of considerations for which the agency has ' Mirmnar and the present case appears superficial. PERC special responsibility, a reviewing court argues that in City of Miramar,the party changed its position will give correspondingly less weight to during the special master process,whereas here,the amended the hearing officer's findings in determining proposal was presented to the legislative body instead of a the substantiality ofevidence supporting-the special master.This argument fails to consider the statutory agency's substituted findings. procedure allowing the parties to waive the appointment of a special master and proceed directly to impasse resolution As McDonald instructs,it is only where an agency's'opinion proceedings by the legislative body. is"infused with special considerations for which'.it has been entrusted"special responsibility"that its decision should be [71 We therefore hold, pursuant to section 447.403, that 'honored by a reviewing court. parties are allowed to change•xheir positions during impasse, whether before a special master or before a legislative body, The language of the contract, set out by Judge Hawkes provided that the.amended proposals do not touch on a topic in footnote six of his opinion, clearly and unambiguously- that has not been previously negotiated at the bargaining Provides that salaries will remain-frozen at the rate established table.,Thus,both the hearing officer and PERC erred when under the expired collective bargaining agreemeht until'a new • they found that Appellant committed an unfair labor practice agreement is reached.The Commission, not a party to the by submitting an amended management rights proposal to the contract,need not be accorded any deference regarding an . legislative body,following declaration of impasse. interpretation of a contract that is not susceptible to different interpretations.Because the interpretation of a contract is one REVERSED and- REMANDED for a determination of law,it is therefore the subject of de novo review.See Avatar consistent with this opinion. Dev.Corp.v.De Pan!Constr.,Inc.,834 So.2d 873,876,n.2 (Fla.4th DCA 2002),and,.if a contract is on its face clear and ERVK J.,Concurs with opinion;ALLEN,J.,Dissents with unambiguous,a reviewing court will enforce such language according to its terms.See Paddock v.Bay Concrete Indus., opinion. Inc., 154 So.2d 313, 315 (Fla. 2d DCA 1963). Thus, the ERVIN,J.,concurring, important policy considerations,refeired to by Judge Allen, are non-existent in circumstances where a contract,as here, I fully concur with Judge Hawlces'opinion.I write separately plainly expresses the parties'intent. only to address what appears-to be a misconception by Judge Allen as to the correct standard of review over the ALLEN,J.,dissenting. Public Employee Relations Commission's construction of the The concept of maintenance of the status. quo .is •a contractual "pay freeze" language. His dissenting opinion settled proposition in Florida public employment collective appears to suggest that our standard is that of clearly bargaining law. Consistent with. this concept, when a erroneous, meaning that a reviewing court should defer to the agency's interpretation so long as it falls within the collective.bargaining. agreement expires, the status quo permissible range of interpretations.See State Dept ofHealth regarding public employee wages under the expired collective &Rehabilitative Sews. v. Fiamat Realty Inc., 407 So.2d bargaining agreement must be maintained during negotiation 238, 242 (Fla.•1st DCA 1981).'This extremely deferential of a new agreement,and it has been recognized that the best rule has traditionally been applied to an agency's construction evidence of the status quo under the expired contract is the of a regulatory.statute it is charged with enforcing.See Fla. Precise wording of the expired contract.But when the right Wildlife Fed'n V. Collier County, 819 So.2d 200,203 (Fla. to maintenance'of the status quo regarding wages during ' • .1st DCA 2002). It was perhaps best *501 described in this interim period has been specifically and voluntarily this courts seminal'decision in McDonald v.Department of waived through contractual agreement between the parties to a collective bargaining agreement, such as occurred in WestlawNexr©2012 Thomson Reuters. No claim to original U.S.Government Works. 5 99 City of Winter Springs v.Winter Springs Professional,885 So.2d 494 2004 • 176•L.R.R.M.(BNA)2629.29 Fla.L.Weekly D2501 the 1997-2061 collective bargaining agreements between the under the succeeding agreements.Stated otherwise,PERC's parties in the present case, the involved public employees position is that waivers of this sort are acceptable if they may not rely upon the status quo doctrine for interim are voluntarily given by public employees,but they may not continuation of the wage provisions of an expired agreement. be forced upon public employees in succeeding agreements See generally Escambia Education Association v. School simply because they were agreed to in prior contracts. Board of Escambia County, 10 FPBR 115160(1984).See The policy supporting PERC's rifling is explained as follows: also School Board of-Orange County v.Palowitch,367 So.2d If public employees agree to such a waiver in a single 730(Fla.4th DCA 1979). collective bargaining g ' ' g agreement the waiver should not be Although public employees have-no obligation to bargain. considered the status quo for future agreements because away their right to maintenance of the wage status quo during this would create a vicious cycle under which a single the interimperiod between collective bargWningagreements, waiver would establish a status quo, thus removing any they sometimes elect to exchange their rights under this fttture requirement for a voluntary waiver and limiting public valuableborgaining issue for other contract concessions from employee bargaining rights as to the issue.in perpetuity. public employers.This is what occurred in the negotiations of Because this policy seems reasonable to me, because it the parties to this appeal in connection with their 1997-2001 appears to be generally consistent with decisional law of collective bargaining agreements. the Florida Supreme Court,seA.e.g., Palrrr'Beach Junior College Board of Trustees v-United Faculty of Palm Beach The first issuepresented in this appeal is whether the appellant Junior College, 475 So.2d 1221 (F1a.1985), and because committed an unfair labor practice when,without the consent establishment of the policy falls within PERC's authority *502 or agreement of the public employees,it perpetuated under Chapter 447 of the Florida Statutes,see, e.g.,Public the waivers contained in the 1997-2001 agreements(the"pay Employees Relations Commisslon a Dade County Police freeze"provisions)beyond the interim period,between the Benevolent Association,467 So.2d 987(F1a.1985),I would 2000-2001 and 20017002 agreements by its inclusion of not disapprove the policy. the"pay freeze" language in the rlity-commission-adopted 2001-2002 collective bargaining agreement. The appellant ` PERC's application of the longstanding insulated period contends that the inclusion of the 2001-2002 "pay freeze" mle in the context of the facts of the present case also provision was not a compelled waiver of anypublic employee. seems reasonable to me and fully consistent with the bargaining rights,but was instead merely an-expression of important public policy rationale underlying the rule. See, ' the preexisting status quo as expressed in the parties'earlier e.g.,. Jacksonville Association of FYrejighters v •City of . collective bargaining agreements. PBRC has'concluded, Jacksonville;15 FPERI 20327(1989);LIFF,Loca12I35 v. however,•that, while voluntary waivers of the right to City of Ocala,5 FPER 110252(1979),affd,394 So.2d 1156 interim maintenance of the wage status quo under an expired (Fla.1st DCA 1981).1 wouldtherefore affirm the order under agreement are lawful,such waivers.may not be relied upon review as to both of the points on appeal. to establish the status quo expectations of the parties under parallel Citations succeeding collective bargaining agreements and to thereby excuse any need for a•voluntary public employee waiver 176 L.RRM.(BNA)2629,29 Fla.L.Weekly D2501 Footnotes 1 Though the Citywas the employer,section 447.203(10),Florida Statutes provides thafthe"legislativabody"forpurposes ofresolving an impasse,can be the governing body of a municipality.Such was the case here,when the Winter Springs City Council sat as the legislative body. 2 The statute provides that a public employer is prohibited from interfering with the collective bargaining rights ofpublic employees, and is further prohibited from refusing to bargain collectively in good faith.§447.501(1)(a)and(c),Florida Statutes(2004). 3 In such a situation,the appellate court reviews the record to determine if there was sufficient evidence to support the original finding of fact by the administrative law judge.BeVerly Health care Kissimmee v,AgencvforHealth dare Admin.,870 So.2d 208,212(Fla. Sth DCA 2004). • 4 However,ifa•salary proposal contains it waiver of the employees'righf to bargain,it would be transformed into a permissive subject of bargaining,which could not be taken to irppaase.See United Paoulty ofFlorida v.Florida Bd.ofEducation,28 FPER¶33232(2002).. J WestlavMexr©2012 Thomson Reuters.No claim to original U.S.Government Works, 6 100 . . • City of Winter Springs v.Winter Springs Professional,885 So.2d 494(2604) 176 L.R.R.M.(BNA)2629;29 Fla.L.Weekly D2501 5 See City ofDebcry Beach•v.Profl Firefighters of Delray Beach,-Local 1842,Int4Ass'n of Firefighters,636 So.2d 157,162(Fla. 4th DCA 1994)('°fhe employee's bargaining rights'as a rule are included[in a CBA],unless specifically waived,"and"[w]itbout -express waiver language,the language in the contract cannot simply be interpreted to"imply''waiver:). 6 The disputed language reads:"Any pay increases after October 1,2002,are subject to the parties agreeing to same and if no agreement is reached,the employee's salaries will remain frozen at their September 30,20D2 rate until a new collective bargaining agreement is reached."This language is the same language used in the previous CBA's except for the applicable year provisions. 7 See also Osceola Classroom Teachers Assn,v.School Bd of Osceola County,4 FPBR 4066(1978)(citing Pinellas County Police Benevolent Assn,3 FPBR 205)(unilateral changes to wages,hours,and terms of employment may only be made after conclusion of the section 447.403 impasse procedure). 8 See also Doyle v.Dept of Business Reg.,794 So.2d 686,690(Fla.1st DCA 2001)(applying clearly erroneous standard). 9 PERC also relies on IAFF,Local2135 v.City of Ocala,5 FPER 110252(1979)for the same idea.However,there too,a party made an ex parts contact with members of the legislative body. *End of Document ®2012 Thomsgn Reuters.No claim to original U.S.Government Works. WestlawNe r©2012 Thomson Reuters.No claim to original U.S.Government Works. 7 101 THE UNION ACCEPTS THE FOLLOWING RECOMMENDATIONS OF THE SPECIAL MAGISTRATE: 1. TERM OF AGREEMENT—the Union accepts the Special Magistrate's recommendation. Although the Union proposed to the Special Magistrate that the CBA be for 2 years,given the City's failure to agree to any of the recommendations of the special magistrate,the Union is of the opinion tha*.,the parties will be better off starting negotiations again,as of October 1,2012. 2. gRTICLE 22—GROUP INSURANCE. The Union accepts the Special Magistrate's recommendation. The Union proposed and the Special Magistrate accepted its recommendation to a substantial increase in the employee's share of the cost of health insurance. The Union proposal is for immediate implementation of an employee share of: Single employee $76.53 a month Single+1 $139.66 a month Family $202.80 This would now be for the term of the CBA,and the parties would negotiate new terms with a new CBA. 3. ARTICLE 35—WAGES—the Union accepts the Special Magistrates recommendation. The SM recommended a 3%across the board salary increase,effective the first day of the new fiscal year,October 1,2012. He also recommended that as of September 30, 2012,there will be no recurring wage increases, but rather,the parties will have to negotiate them for each year of a contract. The Union accepts this latter recommendation,subject to the City's acceptance of the first part of the SM's recommendation on wages. The City conceded it was not suffering economically,as were some other cities. 4. ARTICLE 3—MANAGEMENT RIGHTS—the Union accepts the SM recommendation. As pointed out in the report of the SM,the City failed to point out any rationale to change the existing Management Rights provision of the contract. Through the years, Union and city have had a good relationship. City employees are neither overpaid nor underpaid in comparison to workers in similar municipalities in Broward County. The Union has had relatively few grievances, and most have been able to be settled without recourse to arbitration. 5. ARTICLE 4—UNON RIGHTS—the Union accepts the SM proposal. See above rationale. If it isn't broke,why try to fix it? 6. LEAVE PAY—Articles 25,26, 27, 28,29. The Union accepts the SM recommendation. The City's position is like that of the man who murders his parents,then says, have pity on me,for I am an orphan. For years,the City has penalized employees who use their leave time, by marking them down on their employee evaluations. In order to get an outstanding evaluation,an employee could not take all of his or her leave time. Now the city proposes to penalize employees who followed the rules by taking away 25%of the time they earned and saved because they followed the rules. The Union explained to the SM that it was willing to consider some form of combined leave, but that it could not in good conscience negotiate away hundreds of hours that employees who had tried to play by the rules had accumulated over time. It was due to the failures of City management to manage time off that employees accumulated so much time off(such as by not permitting people to take their vacation time,or by encouraging employees not to take sick leave time,by rewarding them for not taking the time). It would be a forfeiture,if all of that time employees were required to accumulate were now to be taken away from them. The leave provisions should remain at status quo,and the parties can return to the bargaining table almost immediately,to negotiate. 7. ARTICLE 28—HOLIDAYS—the Union accepts the SM recommendation. The City's proposal would penalize employees with no rationale for doing so. 8. ARTICLE 12—workweeks, breaks and overtime. The Union accepts the SM recommendation. Again,the City offered no justification for changing existing language. As the SM stated, it appears the City's negotiators wanted to re-write the entire contract,to take away many hard-fought, long- enjoyed union rights, not because they were excessively costly to the city—the City was able to produce no rationale for that—but because"we can." The Union hopes the legislative body will reject these blatant efforts to undermine the Union. 9. ARTICLE 37-layoff and bumping. See rationale above, re: ARTICLE 12. 10. PENSION PLAN -With regard to Pension Plan,The Union rejects the SM proposal to eliminate the DROP plan effective August 1,2012 and accepts the remaining recommendation of the SM regarding pension. The reason the Union rejects the proposal to eliminate the DROP is that the proposal does not provide any details of what would be entailed. For example,what would happen to current DROP participants? What about DROP eligible employees? Also,the Union believes the pension board trustees as the fiduciaries for the plan need to rule on whether or not this proposition is in the best interests of the participants and beneficiaries of the Plan. No changes could be made to the Plan without approval of the pension board trustees. 11. MISCELLANEOUS CITY PROPOSALS. The Union accepts the SM recommendations,as listed below: a. Union dues deduction—accept SM recommendation to leave at status quo w t b. Employees charged with felony crimes—accept SM recommendation to leave at Status Quo c. Collective bargaining—accept SM recommendation to leave at Status quo (negotiations conducted on City time) d. Disciplinary Appeals—accept SM recommendation and rationale therein e. Contract Constitutes Entire Agreement—Union accepts SM recommendation and rationale. f. Collateral documents -Union accepts SM recommendation and rationale. g. Probationary Period—Union accepts SM recommendation and rationale. h. Employee Evaluations—Union accepts SM recommendation and rationale. i. Prevailing Rights—Union accepts SM recommendation and rationale. see especially,the rationale expressed above—the City proposes many changes in the CBA`just because we can,"with no rationale related to the actual relationship between the parties for the past 20 years. Just one example is the proposed changes in disciplinary appeals. There have been no issues arising between the parties under this provision,yet the City proposes changes. It seems the city manager,finance director and attorney are more interested in abstract notions than in what actually occurs between union and management in the city of Dania Beach. 12. Article 28—HOLIDAYS—Union accepts the SM recommendation to maintain the status quo. 13. Article 37—LAYOFF AND BUMPING—Union accepts the SM recommendation to maintain the status quo. 14. UNION PROPOSALS-The Union accepts the SM rejection of all of its proposals.