IMPASSE

Presented byMark E. Levitt, Esq.Allen, Norton & Blue, P.A.

Topics

What, When, Why, and How?

The Impasse Process

Recent Cases

Tips and Tricks

What, When, Why, and How?

Current Issues

What is Impasse?

Section 447.403, Florida StatutesResolution of Impasses

“If, after a reasonable period of negotiation concerning the terms and conditions of

employment to be incorporated in a collective bargaining agreement, a dispute exists between a

public employer and a bargaining agent, an impasse shall be deemed to have occurred when

one of the parties so declares in writing to the other party and to the commission.”

When Should We Declare Impasse?

• Timing – What is reasonable?

• Impasse is prematurely declared if the party refused to meaningfully negotiate mandatory subjects of bargaining by declaring impasse before negotiating those issues. IBPO, Local 621 v. City of Hollywood, 8 FPER 13334 (1982).

• There does not need to be a deadlock in negotiations

Why Should We Declare Impasse?

• When all else fails…

• Deal-Breakers

• Difficult issues that impact the budget• Wages• Pension• Health Insurance

How to Declare Impasse?

• Only one party needs to declare

• Either party may declare impasse• Verbally at the bargaining table

<OR>

• In writing to the other party

The Impasse Process

Current Issues

Impasse Process

Appointment of a Special Magistrate

• Written notice to PERC

• List of 7 names

• Strike Names• Party who declares impasse strikes first

• What makes a good Special Magistrate?• Strategies for striking names

Impasse Process

The Special MagistrateTo Use or Not to Use?

• Reasons to bypass Special Magistrate• Cost• Time• Number of Issues Involved• Political Reasons

• Employer’s best interest is to bypass Special Magistrate in most cases• Difficult to get union to agree

Impasse Process

The Special MagistrateTo Use or Not to Use?

• Reasons not to bypass Special Magistrate• Special Magistrate’s Recommendation may be

helpful:• Neutral perspective• Public perception• Bargaining unit employees• Legislative body

• May narrow issues

Impasse Process

Factors to be considered by the Special MagistrateSection 447.405, Florida Statutes

(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 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.(b) Physical qualifications.(c)  Educational qualifications.(d)  Intellectual qualifications.(e)  Job training and skills.(f)  Retirement plans.(g)  Sick leave.(h)  Job security.

(5) Availability of funds.

Impasse Process

Briefs and Recommended Decision

• What to include in your brief

• Recommended Decision• Within 15 days after close of the hearing• If the parties file briefs, the hearing closes

when briefs are filed• Recommended decision addresses all

unresolved issues

Impasse Process

After the Special Magistrate Issues aRecommended Decision

• Parties must discuss recommended decision• Each recommendation is approved, unless either

party specifically rejects it by written notice filed with PERC

• Reject within 20 calendars days after recommended decision

• Written Notice• Must include statement of cause for each rejection• Must be served on the other party

Impasse Process

• If either party rejects any recommendation, the CEO (Superintendent) must submit the following to the legislative body (the School Board):• Copy of the Special Magistrate’s recommended decision• The Superintendent’s recommendations for settling the disputed

impasse issues

• Must file within 10 days and serve on the union

• Only make recommendations on issues that remain in dispute

• The Union also must submit its recommendations to the School Board and the Superintendent

Impasse Process

Legislative Body Hearing

• Public hearing

• Parties must explain their positions on the rejected recommendations of the Special Magistrate• Give parties equal time• Statute sets no minimum or maximum time limit

• Legislative body must resolve the disputed issues• May occur at the same meeting• Must consider public interest

Impasse Process

Post-Legislative Body Hearing

• Parties shall draft an agreement including issues agreed to by the parties and issues resolved by the School Board• Parties do not literally have to meet and draft in person• One party can draft and the other can approve

• Must be signed by School Board and Union

• Ratification• Superintendent must submit to “public employer” (i.e. the

School Board)• Union must submit to all bargaining unit employees

Impasse Process

Post-Legislative Body Hearing

• If ratified, the Agreement is implemented

• If not ratified by either or both parties• Status quo on issues not at impasse, so agreed upon

changes do not go into effect• Legislatively resolved issues are “imposed” – go into effect

as of the date the issues were resolved for one (1) year• Some issues cannot be imposed• Duration clauses• Preambles• Recognition clauses

Recent Cases

Changing Proposals at Impasse

• Issue: Can you change or introduce new proposals at impasse?

• Port Orange I – Port Orange Professional Fire Fighters Association, IAFF, Local 3118 v. City of Port Orange, 37 FPER 99 (2011), aff’d per curiam, 86 So.3d 1121 (Fla. 1st DCA 2012)

Port Orange I

Outcome

• PERC ruled that the 6% reduction in starting and top out pay was not a ULP because the parties are allowed to change their positions at any point during impasse provided that the amended proposals do not touch on a topic that was not previously negotiated at the bargaining table

• PERC affirmed the Hearing Officer’s conclusion that proposing a 6% wage reduction in lieu of a pension contribution increase was not unlawful

• The First DCA affirmed per curiam

Self-Help

• Issue: Union refuses to ratify

• Port Orange II – City of Port Orange v. Port Orange Professional Fire Fighters Association, IAFF, Local 3118, 38 FPER 244 (2011)

• Daytona Beach Fire Rescue Local 1162, IAFF v. City of Daytona Beach, 39 FPER 28 (2012), aff’d per curiam, 121 So.3d 1058 (Fla. 5th DCA 2013)

Port Orange II

• Option 1 – If the Union refuses to ratify, file a ULP

• The City filed a ULP alleging that it was unlawful for the Union to refuse to sign and submit an agreement reached through impasse process

• PERC held that Union’s refusal was unlawful, citing to City of Hollywood v. Hollywood Municipal Employees, Local 2432, AFSCME, 468 So.2d 1036 (Fla. 1st DCA 1985) that the purpose of Section 447.403(4)(e), Florida Statutes, is to bring collective bargaining to an end at a point certain

Daytona Beach

• Option 2 – Self-help when a union refuses to ratify

• PERC held that a ratification vote is not a condition precedent to implementation of legislatively resolved impasse issues, receding from Communications Workers of America, Local 3170 v. City of Gainesville, 20 FPER 25226 (1994).

• Affirmed per curiam by the Fifth DCA

The Ruse

• Issue: Union agrees to adverse proposals to remove them from the impasse process

• Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit, 39 FPER 175 (2012), on appeal docketed at 2D12-6033 (Fla. 2nd DCA)

• Naples I - Professional Firefighters of Naples, I.A.F.F. v. City of Naples, 39 FPER 329 (2013), aff’d per curiam, unpublished at 2013 WL 6869087 (Fla. 2nd DCA 2013)

• Communications Workers of America v. School District of Indian River County, 40 FPER 32 (2013)

ATU v. HART

• PERC held that the parties may resume the impasse process after a failed ratification vote and are not required to return to collective bargaining, relying on City of Hollywood (the purpose of the impasse process is to bring collective bargaining to a conclusion

• 2nd DCA reversed on appeal• Hollywood’s commentary re: bringing bargaining to an end at a

point certain only applies to 447.403(4)(e)• Basically affirmed Sarasota – must return to bargaining pre-

legislative body if the agreement is not ratified by either party

• Motion for Rehearing Pending

Naples I

The Outcome• PERC held that the Union bargained in bad faith because its

motivation in accepting the City’s pension proposal was to remove the pension plan from the impasse resolution process. The Union’s motivation was not to reach an accord, but to derail the impasse resolution process and perpetuate the status quo. The Union know or should have known that the employees would not ratify the contract.

• Because the Union acted in bad faith by purportedly accepting the City’s proposal, the parties remained at impasse and the City did not act unlawfully by continuing the impasse resolution process.

• Second DCA affirmed per curiam

Indian River

• PERC held that the Union unlawfully agreed to the District’s Insurance proposal to thwart the bargaining process

• “The CWA agreed to the District’s health insurance proposal knowing with virtual certainty that the unit employees would not ratify the proposal and with the intent of avoiding finality in the bargaining process and extending the status quo indefinitely. This conduct constitutes a failure to bargain in good faith because it makes a mockery of the impasse resolution process and renders it meaningless.”

• Also reiterated that Parties may return to point of impasse after failed ratification (ATU v. HART)

Other Cases

• City of Hialeah v. International Ass’n of Fire Fighters, Local 1102, 38 FPER 111 (2011)• After over two years of negotiations and

impasse proceedings, a Special Magistrate sided with the City on every issue at impasse, but the Union did not file any rejections. Ratification failed by a vote of 177 to 1 and after ULP proceedings concluding the Union had not bargained in bad faith, the parties were forced to go back to negotiations.

Other Cases

• International Ass’n of Fire Fighters, Local 2622 v. City of Jacksonville Beach, 39 FPER 283 (2013)• Over the course of collective bargaining negotiations,

the City declared impasse three times, and each of the first two times, the Union “accepted” the City’s proposal before the special magistrate, and the agreement was overwhelmingly rejected by the bargaining unit. After the third time, both parties filed ULPs. PERC held that the Union did not bargain in bad faith, but took note of its recent statement in ATU v. HART and cautioned that its dismissal of this case should not be read “to countenance a never-ending cycle of negotiations.” It’s decision was based on a lack of evidence showing bad faith.

Other Cases

• Naples II – Professional Fire Fighters of Naples, IAFF, Local 2174 v. City of Naples, 40 FPER 284 (2014)• In the wake of Naples I, the City rejected a

special magistrate’s recommendation of its own proposal, anticipating that the Union would not. PERC held that the City did not commit an unfair labor practice, even though it rejected its own position. The parties did not reach a meeting of minds regarding the pension issue, and therefore the issue was still at impasse

Tips and Tricks

Tips and Tricks

• Package Proposals• During Negotiations• Throughout Impasse Process

• Ratification Letter (Daytona Beach)• Require response• Set deadline• Self-help if Union refuses to conduct ratification

• Return to point of impasse after failed ratification (Port Orange, HART)

Tips and Tricks

• Do not accept a bad faith acceptance (Naples, Indian River)

• Rejecting your own proposal (Naples 2)• If Union will not reject an adverse recommendation• Very limited circumstances – works better with a package

proposal

• Change position at impasse (Port Orange, Naples)• Rescind concessions

• One year contract

Mark E. Levitt, Esq.

1477 West Fairbanks Ave., Suite 100Orlando, FL 32814

(407) 571-2152mlevitt@anblaw.com

Questions?