Florida Public Employees Relations Commission

Hallandale Professional Fire Fighters Association, Local 2238,

Charging Party,

City of Hallandale,

Respondent.

Docket No. CA-88-080

Order No. 89U-161

1989 FPER (LRP) Lexis 154

June 21, 1989, Decided

ORDER

On December 9, 1988, the Hallandale Professional Fire Fighters Association, Local 2238 (Local 2238), filed an unfair labor practice charge alleging that the City of Hallandale (City) violated 447.501(1)(a) and (c), Florida Statutes (1987).1 Local 2238 alleged that the City unilaterally changed terms and conditions of employment by adopting a resolution which requires newly-hired employees in the bargaining unit to sign restrictive employment agreements. The charge was deemed sufficient by the Commission’s General Counsel on December 22, 1988, and a hearing officer was assigned. On January 20, 1989, Local 2238 and the City filed a joint stipulation of facts. Consequently, the case was processed pursuant to 120.57(2), as an informal proceeding. After completion of the briefing schedule, the hearing officer issued a recommended order (HORO) on March 13, 1989. The hearing officer found that the City violated 447.501(1)(a) and (c), by: 1) unilaterally changing a term and condition of employment; and 2) directly dealing with bargaining unit personnel. She also recommended that the Commission should award Local 2238 attorney’s fees and costs of litigation.

The City filed exceptions to the hearing officer’s recommended order on March 31. Upon request, the Commission heard oral argument on May 23. Thereafter, the parties advised the Commission that they waived the ninety-day period for issuance of the Commission’s order and authorized the Commission to issue its order by June 21.

The Commission has reviewed the entire record in this case and finds that the hearing officer’s findings of fact are supported by competent, substantial evidence and that the proceedings upon which the findings are based comply with the essential requirements of law. Accordingly, we adopt the hearing-officer’s findings of fact.2 See Holmes v. Turlington, 480 So.2d 150, 153 (Fla. 1st DCA 1985); City of Umatilla v. PERC, 422 So.2d 905, 907 (Fla. 5th DCA 1982), cert. denied, 430 So.2d 452 (Fla. 1983); 120.57(1)(b)10., Fla. Stat. (1987).

The City’s exceptions one through four dispute the hearing officer’s legal analysis and conclusion of law that the City’s adoption of a resolution requiring applicants, as a condition for hiring, to execute “restrictive employment agreements” constituted a unilateral change of wages, hours and terms and conditions of employment in violation of 447.501(1)(a) and (c). We agree with the hearing officer’s analysis that, in the absence of waiver, exigent circumstances, or legislative resolution of an impasse pursuant to 447.403, the imposition of pre-employment contracts affecting wages, hours and terms and conditions of employment of employees represented by a certified bargaining agent constitutes a per se violation of 447.501(1)(a) and (c) In re City of Hollywood, 14 FPER 19130 (1988); IAFF Local 2266 v. City of St. Petersburg Beach, 13 FPER 18116 (1987); accord, City of Mt. Vernon, 18 PERB 3020 (N.Y. PERB 1985).

In its exceptions on this issue, the City contends that the hearing officer overlooked or misapprehended a critical distinction between the “restrictive employment agreements” imposed here and those considered in prior cases. It essentially argues that these agreements do not affect wages, hours, or terms and conditions of employment of unit personnel represented by Local 2238, because the liquidated damage provision is not triggered until after employment is terminated with the City. In support of this contention it refers to the decision of the Fifth District Court of Appeal in City of Orlando v. PERC, 435 So.2d 275 (Fla. 5th DCA 1985), that promotional examinations to positions outside the bargaining unit are not negotiable because they do not involve terms and conditions of employment of members within the bargaining unit. Specifically, the City refers to the following language in that case:

Promotion to the rank of lieutenant is neither mandatory nor certain for members of the bargaining unit and competition therefore is voluntary on the part of unit employees. Promotional criteria for positions outside the unit thus do not vitally affect terms and conditions of employment for employees within the bargaining unit because promotion itself is speculative and uncertain. Id. at 280.

This argument fails to take into consideration that, unlike City of Orlando, the “restrictive employment agreement” here contains established and nonspeculative restrictions that apply during employment. Dictionaries define the word “condition” as “a provision making the effect of a legal instrument contingent upon an uncertain event.” Webster’s New Collegiate Dictionary 235 (1976); Black’s Law Dictionary 265 (rev. 5th ed. 1979).

The word “term” is defined as “a limited or definite extent of time.” Webster’s New Collegiate Dictionary 1203 (1976); Black’s Law Dictionary 1318 (rev. 5th ed. 1979). Under the City’s restrictive employment agreement, as a condition of being hired, the applicant agrees “to make himself/herself available for continual employment.” Monetary damages are imposed when a bargaining unit member resigns his or her position with the City for the purpose of accepting employment with another fire department or state agency within two years of the successful completion of fire fighter training.

Thus, while the penalty is imposed after the employment relationship has ceased,3 the fact that initial hiring is contingent upon a minimum duration of employment and that, during that two-year period, the employee must refrain from terminating employment to take a position in the profession for which he or she is trained clearly establishes a term of employment and a condition of employment. This is a restriction which applies during employment, and is not indirect, incidental or remotely related to negotiable subjects.

The City’s argument is further undermined by the fact that the “restrictive employment agreement” specifically provides:

C) The Applicant/Employee shall receive, as a credit against any indebtedness incurred under paragraph II B above, an amount equal to all earned but unpaid wages and accrued vacation leave. The Applicant/Employee hereby assigns all of his/her right, title and interest in such wages and other benefits not protected from voluntary assignment by law, to the City of Hallandale for this purpose.

Therefore, the agreement directly affects wages and benefits. Accordingly, exceptions one through four are DENIED.

In its fifth exception, the City asserts that it is authorized to enact its ordinance pursuant to Article VIII of the Florida Constitution and 166.021, Florida Statutes, which confer municipalities with home rule powers. It also contends that the enabling ordinance, Resolution 88-15, was authorized by 943.16(2), because it “is statutory authority for public employers to recover costs of training police officer...Resolution 88-15 does the same thing for fire fighters and enjoys the same dignity as the Statute.”

While we do not question the legitimacy of the City’s intended goal, it is patently obvious that 943.16 only applies to law enforcement personnel. Thus, there is no direct statutory authority for the City’s resolution. Further, we cannot conclude that generalized provisions conferring home rule authority allows the City to unilaterally impose an ordinance affecting negotiable subjects. Both the constitutional and statutory provisions on which the City relies provide that municipalities “may exercise any power for municipal purposes.”

The exercise of these powers, however, is not without restriction or limitation. In fact, they both specifically limit such exercise to matters that are not prohibited by law. See Article VIII, Section 2(b), Florida Constitution; 166.021(1). Therefore, while the enactment of Resolution 88-15 unquestionably serves a municipal purpose, the application of such to bargaining unit members is subordinate to the express provisions of Chapter 447, Part II, which requires negotiations rather than unlawful unilateral action. See Hillsborough County Government Employees Association, Inc. v. Hillsborough County Aviation Authority, 522 So.2d 358 (Fla. 1988); West Palm Beach Association of Firefighters v. City of West Palm Beach, 448 So.2d 1212, 1215 (Fla. 4th DCA 1984). Accordingly, these exceptions are DENIED.

In exceptions nine and ten, the City disputes the hearing officer’s analysis concerning direct dealing. Since this issue is beyond the scope of the charge,4 it is unnecessary for us to consider this analysis. See Teamsters Local Union No. 769 v. City of Homestead, 10 FPER 15181 at 366 (1984). Thus, we grant the City’s exceptions and decline to accept the hearing officer’s analysis and recommendations on this issue.

The City’s exceptions eleven and twelve are posed to the hearing officer’s failure to grant the City’s motion to dismiss and motion for summary judgment. Those motions were based upon the City’s arguments that the case was not ripe because no employee had actually been required to sign a contract. The City further contends that, under these circumstances, Local 2038 should have been required to file a petition for declaratory statement, instead of an unfair labor practice charge.

The hearing officer’s fact number five states “Resolution No. 88-15 took effect on September 20, 1988, the date of its passage, remains in effect to date and will be implemented and enforced by the City.” The Commission has previously held that the critical date is when a change in terms and conditions of employment is imposed. The fact that it has not been applied will not exonerate the offending party. Amalgamated Transit Union, Local 1596 v. Orange-Seminole-Osceola Transportation Authority, 12 FPER 17134 at 274-75 (1986).

Thus, the City’s imposition of the ordinance, which is effective, created a case or controversy which was properly adjudicated via unfair labor practice procedures, rather than through a declaratory statement. This ruling is consistent with the policy manifested in 447.501(3)6.b., that unfair labor practice charges must be filed within six months of the action giving rise to the dispute. Accordingly, the hearing officer correctly adjudicated the case on the merits and exceptions eleven and twelve are DENIED.

Finally, in exceptions six, seven and eight, and portions of nine, ten and twelve, the City disputes the hearing officer’s determination that an assessment of attorney’s fees and costs is warranted under the facts of this case. Initially we note that we agree with the City that no fees or costs are properly assessed due to any alleged act of direct dealing. However, we accept the hearing officer’s analysis that the Hollywood and St. Petersburg Beach cases represent established case law on the employment contract issue and, consequently, the City knew or should have known that its action was in violation of law.

Although the City’s arguments here focus upon factual differences between this case and those previously considered by the Commission, given our conclusion that the “restrictive employment agreements” at issue here directly affect wages and terms and conditions of employment, and our rejection of the City’s arguments to the contrary, we conclude that these are distinctions without a difference. See Leon County PBA, Inc. v. City of Tallahassee, 8 FPER 13400 (1982), aff’d, 445 So.2d 604 (Fla. 1st DCA 1984). Accordingly, we reject these exceptions and, as modified, accept the hearing officer’s analysis on the attorney fees.

CONCLUSIONS OF LAW

Based upon the record in this case and for the reasons stated in the recommended order and in our discussion above, the Commission makes the following conclusions of law:

1. The City of Hallandale is a public employer within the meaning of 447.203(2).

2. The Hallandale Professional Fire Fighters Association Local 2238 is an employee organization within the meaning of 447.203(11), and is a certified bargaining agent within the meaning of 447.203(12).

3. The City violated 447.501(1)(a) and (c) by unilaterally implementing a pre-employment agreement requiring applicants to agree to complete a two year term of employment after they have received fire fighter training.

4. An award of reasonable attorney’s fees and costs to Local 2238 is appropriate for those fees and costs associated with its litigation of the restrictive employment agreement issue.

Pursuant to 447.503(6)(a), Florida Statutes (1985), the Commission ORDERS the City of Hallandale, Florida to:

1. Cease and desist from:

(a) Unilaterally imposing a restrictive employment pre-employment agreement requiring applicants to agree to a two-year term of employment after training before they may voluntarily leave employment with the City to take a position in their trained profession.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Chapter 447, Part II.

2. Take the following affirmative action:

(a) Withdraw resolution 88-15.

(b) Pay to Local 2238 its reasonable attorney’s fees and costs incurred in litigating this case.

(c) Post immediately for sixty days in conspicuous locations where notices to firefighting personnel are customarily posted a Notice to Employees stating that the City shall cease and desist from the actions set forth in paragraphs 1(a)-(c) above and that it shall take the affirmative action set forth in paragraphs 2(a) and (b) above. Copies of the notice shall be signed by the City’s authorized representative prior to posting. The City shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by other material.

(d) Notify the Public Employees Relations Commission in writing within twenty calendar days from the issuance of this order of the steps that have been taken to comply with this order.

This order may be appealed to the appropriate District Court of Appeal. A notice of appeal must be received by the Commission and the District Court of Appeal within 30 days from the date of this order. Except in cases of indigency, the court will require a filing fee and the Commission will require payment for preparing the record on appeal. Further explanation of the right to appeal is provided in 447.504 and 120.68, Florida Statutes (1987), and the Florida Rules of Appellate Procedure.

Alternatively, a motion for reconsideration may be filed. The motion must be received by the Commission within 15 days from the date of this order. The motion shall state the particular points of fact or law allegedly overlooked or misapprehended by the Commission, and shall not reargue the merits of the order. For further explanation, refer to Florida Administrative Code Rule 38D-15.005.

It is so ordered.

Notes:

(a) 1 All statutory citations are to the 1987 edition of Florida Statutes.

(b) 2 Although the City filed no exceptions to the factual findings, there is a suggestion in exception two that the hearing officer deleted a portion of stipulation 10. However, upon review we find that the hearing officer correctly recited this information in her sixth finding of fact. (See HORO at 3) Accordingly, we reject the City’s contention on this point.

(c) 3 We do not consider it to be critical that the penalty is not imposed after the act of termination. This appears to be analogous to the subject of retirement, which is negotiable. See City of Tallahassee v. PERC, 410 So.2d 487 (Fla. 1982).

(d) 4 Counsel for Local 2238 advised the Commission during oral argument that the union agrees with the City that no direct dealing has occurred and its charge and arguments were intended to convey that direct dealing would ultimately occur when these employment contracts were imposed upon unit personnel.

HEARING OFFICER’S RECOMMENDED ORDER

Cromar, Hearing Officer.

I. STATEMENT OF THE CASE

On December 9, 1988, the Hallandale Professional Fire Fighters Association, Local 2238, filed an unfair labor practice charge alleging that the City of Hallandale violated 447.501(1)(a) and (c), Florida Statutes (1987).1 Specifically, Local 2238 alleged that the City unilaterally changed terms and conditions of employment by adopting a resolution which requires newly-hired employees in the bargaining unit to sign a restrictive employment agreement. Further, Local 2238 alleges that by establishing a requirement that new employees sign these individual restrictive employment agreements, the City has bypassed Local 2238 and seeks to bargain directly with employees concerning their working conditions and terms of employment. On December 22, 1988, the General Counsel issued a notice of sufficiency. An evidentiary hearing was scheduled for January 31, 1989.

On January 13, 1989, the City filed an answer to the charge admitting that it had passed Resolution No. 88-15. The City denied all other allegations and as affirmative defenses stated that: (1) the City has not taken steps to implement the resolution; (2) the restrictive employment agreement, even if implemented, could not affect an employee during his term of employment and therefore, does not impact wages, hours or terms and conditions of employment; (3) to the extent any change occurred, such change is de minimis and is a matter of management prerogative; and (4) public policy considerations concerning the cost of training fire fighters mandate that the City receive the benefit of its expenditure. In addition, the City filed a motion to dismiss the charge and a memorandum of law supporting the motion on January 13, 1989. On January 20, 1989, the Commission referred the motion to dismiss to me for ruling in my recommended order.

On January 19, 1989, Local 2238 filed a motion for attorney’s fees and costs for prosecution of this charge.

On January 20, 1989, Local 2238 and the City filed a joint stipulation of facts for the purpose of this proceeding. Consequently, the evidentiary hearing was cancelled. Pursuant to the briefing schedule set forth in my order of January 26, 1989, Local 2238 filed a motion for summary judgment which was accompanied by a supporting brief on February 13, 1989. On February 17, 1989, the City filed its motion for summary judgment accompanied by a supporting brief. On February 24, 1989, the City filed a reply brief to Local 2238’s brief for summary judgment.

II. STIPULATION OF FACTS

1. The City is a public employer within the meaning of 447.203(2).

2. The City has maintained and operated a fire department and has employed employees in the ranks of fire fighter, driver/engineer, EMT I, paramedic, fire lieutenant, fire captain, battalion chief, assistant chief, and fire chief who are assigned to work in the fire department.

3. At all times material hereto, the city manager is and has been the City’s chief executive officer, the fire chief is and has been the department head of the fire department, and the City Commission is and has been the City’s legislative body.

4. Local 2238 is an employee organization within the meaning of 447.203(11), which is the certified and recognized exclusive collective bargaining agent for the fire fighters, driver/engineers, EMT I’s, paramedics, fire lieutenants, and fire captains employed by the City in its fire department as certified by the Florida Public Employees Relations Commission on January 15, 1976, in case number 8h-RA-756-1192 and clarified on February 4, 1985, by PERC Order 85M-041. See Hallandale Professional Fire Fighters, Local 2238 v. City of Hallandale, 11 FPER 16071 (1985).

5. Resolution No. 88-15 took effect on September 20, 1988, the date of its passage, remains in effect to date, and will be implemented and enforced by the City.

6. Prior to the passage and implementation of Resolution No. 88-15 by the City, the requirements set forth therein were not imposed upon, required of, requested of or performed by persons employed by the City as fire fighters or persons applying for such employment. Such employees or applicants were not, inter alia, requested or required to sign “restrictive employment agreements,” were not requested or required to promise in writing “not to voluntarily terminate or quit said employment for the purpose of commencing employment with any other fire department or related agency within the State of Florida for a period of two years from the date of his/her satisfactory completion of firefighter training,” and were not required or requested to pay to the City liquidated damages should the fire fighter employee so voluntarily terminate within said two-year period.

7. Prior to the passage and implementation of Resolution No. 88-15, the provisions of that resolution, the terms of the restrictive employment agreement which is part of the resolution, and the requirement in the resolution that newly-hired firefighters or applicants for the position of fire fighter sign such restrictive employment agreements were not collectively bargained with, consented to or agreed to by Local 2238.

8. On September 19, 1988, Local 2238 delivered a letter to the fire chief opposing the resolution implementing the restrictive employment agreement. (Ex. 4) At the City Commission meeting held on September 20, 1988, Local 2238 voiced its objection to passage of the resolution and implementation of the restrictive employment agreement without bargaining with Local 2238. (Ex. 3)

9. Resolution No. 88-15, which the parties have stipulated was approved and adopted unanimously by the City Commission on September 20, 1988, states in pertinent part:

The City Commission hereby establishes a policy of requiring all prospective firefighters to execute a restrictive employment agreement prior to the commencement of their employment with the City of Hallandale, as a condition of employment with the City, according to the terms and conditions contained in that agreement, a copy of which is attached to and made a part of this Resolution. The City Manager and Director of Personnel are directed not to sign the appropriate employment forms and not to hire or commence employment of any person not complying with this requirement.

10. The restrictive employment agreement requires employees hired after September 20, 1988, who subsequently resign from employment with the City before their second anniversary date, to pay the City $10.00 per working day for each day between their date of resignation and their second anniversary date of employment for reimbursement of training costs. In addition, the agreement requires employees to assign their wages and benefits to indemnify the City of this financial obligation, to execute personal promissory notes for any amounts due to the City, to execute all documents and perform all acts necessary to allow the City to take a consent judgment against the employee for the amount due, and to pay the City’s attorney’s fees, costs and interest.

III. DISCUSSION AND ANALYSIS

Unilateral Change

The subjects that a public employer is required to negotiate with a certified bargaining agent are established by 447.309(1), which requires public employers to bargain collectively over “wages, hours and terms and conditions of employment.” The Commission has consistently held that, in the absence of waiver, exigent circumstances requiring immediate action, or legislative resolution of an impasse pursuant to 447.403,2 a public employer’s unilateral alteration of wages, hours, and other terms and conditions of employment of public employees represented by a certified bargaining agent constitutes a per se violation of 447.501(1)(a) and (c). E.g. Federation of Public Employees v. School District of Broward County, 14 FPER 19158 at 419 (1988).

The City has stipulated that it did not negotiate with Local 2238 prior to its decision to implement the restrictive employment agreement mandated by Resolution No. 88-15 which reimburses the City for its training costs. In its defense the City asserts that it has not implemented the resolution, and that even if implemented, the resolution does not affect employees during their employment with the City and, therefore, does not impact wages, hours or terms and conditions of employment. In addition, the City argues that it had no duty to bargain over its decision to place the restrictive agreement into effect because the decision was a management right, and that any change which has occurred is de minimis. The City also contends that public policy considerations concerning the cost of training fire fighters override its obligation to bargain collectively over the restrictive employment agreement.

The City’s assertion that it has not implemented the resolution and that some further action on the part of prospective employees is required before the resolution is effective, is contrary to its stipulation (number 6) and without merit. By its terms the resolution is self-implementing (stipulation 9). The city manager and director of personnel have been directed by the city commission not to hire any person who fails to execute the restrictive employment agreement embodied in the resolution. Accordingly, I recommend that the Commission deny the City’s motion to dismiss the charge on the grounds that the charge is not premature.

In order to decide whether the City violated its duty to bargain, I must determine whether the subject matter of its decision to impose the restrictive employment agreement upon newly-hired fire fighters makes it a management right under 447.209, or is a term or condition of employment over which the City is required to bargain pursuant to 447.309(1). Where a matter may reasonably be viewed as falling within the broad category of “terms and conditions of employment” but also arguably involves a managerial prerogative under 447.209, such as an employer’s right to “exercise control and discretion over its organization and operations,” the apparent conflict will be resolved by the Commission in favor of mandatory bargaining. See Duval Teachers United v. Duval School Board, 3 FPER 96, 100 (1977), aff’d, 353 So.2d 1244 (Fla. 1st DCA 1978).3

Notwithstanding the Commission’s expansive interpretation of the phrase “wages, hours, and terms and conditions of employment,” decisions which are so fundamental to the basic direction of government and have only an indirect and attenuated impact on the employment relationship remain within the exclusive province of the employer. If a matter regulates a significant aspect of the employer-employee relationship, however, it will be deemed a wage, hour, or term or condition of employment and hence a mandatory subject of bargaining, regardless of the administrative burden the employer may suffer as a result. See FOP, Miami Lodge 20 v. City of Miami, 12 FPER 17029 (1985), aff’d, 14 F.L.W. 299 (Fla. 3d DCA Jan. 31, 1989); Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So.2d at 137-38; Central Florida Professional Fire Fighters v. Board of County Commissioners of Orange County, 9 FPER 14372 at 782; St. Petersburg Association of Fire Fighters v. City of St. Petersburg, 5 FPER 10381 (1979), aff’d, 388 So.2d 1124 (Fla. 2d DCA 1980).

The City’s decision requiring that prospective employees sign the restrictive agreement is not a decision which is fundamental to the basic direction of government. Moreover, the restrictive agreement has a direct and substantial affect on employees because it penalizes those employees who may desire to change employment within two years of their date of employment with the City. In the event an employee wishes to terminate employment with the City in less than two years, the employee must agree to purchase a release at a price fixed by the City. Compensation or wages, as well as how long employees are required to remain employed in order to avoid incurring the payback penalty, are significant aspects of the employer-employee relationship. Should the employee voluntarily terminate employment prior to the second anniversary date, the net wages paid to the employee by the City will be less than that stated in the collective bargaining agreement.

In a similar case, the New York Public Employees Relations Board (PERB) held that the issue of whether the City or the employee will pay for training if the employee resigns within three years of receiving permanent status is a compensation issue and therefore a mandatory subject of bargaining. See City of Mount Vernon v. City of Mount Vernon PBA, 18 PERB 3020 (1985). Finally, the plain language of Resolution No. 88-15 requires “prospective fire fighters to execute a restrictive employment agreement prior to the commencement of their employment as a condition of employment with the City ....” (emphasis added) Accordingly, I conclude that the restrictive agreement is neither a management right nor of inconsequential impact on future bargaining unit members, but rather a term and condition of employment which is subject to mandatory collective bargaining.

The City’s policy argument that the cost of training fire fighters overrides its obligation to bargain is unpersuasive. The City may be reasonably concerned about retaining employees when it has invested time and money in training those employees. Efforts at maintaining staff, however, cannot be imposed unilaterally when they substantially affect employees’ terms and conditions of employment. See City of Mount Vernon, 18 PERB 3020 (1985). Therefore, I conclude that by refusing to negotiate with Local 2238 over the restrictive employment agreement, the City violated 447.501(1)(a) and (c).

Direct Dealing

Local 2238 has also alleged that the City, through adoption and implementation of Resolution No. 88-15, has unlawfully engaged in direct dealing with bargaining unit members regarding conditions of employment. The City’s response is that it has not implemented or enforced the restrictive employment agreement because a prospective employee has not yet been requested to sign such an agreement. An example of conduct that is indicative of bad faith is “negotiating directly with employees rather than with their certified bargaining agent.” 447.203(17)(f), Fla. Stat. (1987). Direct negotiations by a public employer with unit members rather than with their certified bargaining agent constitutes an independent violation of 447.501(1)(a) and (c). Fort Walton Beach Fire Fighters Association v. City of Fort Walton Beach, 11 FPER 16240 (1985). Proof of subjective bad faith is not a necessary element in a direct dealing case. Regardless of good faith or bad faith, the impact of the public employer’s action upon the rights of employees and integrity of the collective bargaining process remains the same. Florida Classified Employees Association v. Taylor County School Board, 7 FPER 12100 (1981), reconsideration denied, 7 FPER 12190 (1981). The primary harm which occurs in a direct dealing case is the undermining of the viability of the employee organization by the public employer. This interferes with the right of employees who have chosen an exclusive bargaining agent to collectively bargain for them. See In re City of Hollywood, 14 FPER 19130 (1988); City of Fort Walton Beach, 11 FPER 16240 (1985).

Although the City argues that a prospective fire fighter has not yet been requested to sign a restrictive agreement, this argument fails to persuade me that the City has not engaged in direct dealing. In Gadsden Classroom Teachers Association v. School Board of Gadsden County, 9 FPER 14202 (1983), the Commission held that where communication transmitted directly from employer to an employee is informational only, it is not unlawful. Whether the communication to employees is informational or unlawful depends on whether it has the effect of enlisting unit employees to withdraw or abandon their support of the certified bargaining agent through coercive statements. Id. at 372.

The City’s communication to the employees at the City Commission meeting on September 20, 1988, concerning the implementation of the restrictive agreement for newly-hired employees, was coercive in nature. No longer is it possible to become a fire fighter for the City without agreeing to the terms of the restrictive agreement. Employees could reasonably believe that Local 2238 could not adequately represent their position with the City during negotiations on the issues involved here. Accordingly, I find that the City has engaged in unlawful direct dealing with employees concerning the restrictive employment agreement, thereby violating 447.501(1)(a) and (c).

Attorney’s Fees and Costs

Local 2238 filed a timely motion for attorney’s fees and costs on January 19, 1989. As I have analyzed this case, Local 2238 is the prevailing party. Consequently, it is entitled to an award of reasonable attorney’s fees and costs if such an award is appropriate. 447.503(6)(c), Fla. Stat. (1987).

The test utilized by the Commission to determine whether a violation is sufficiently blatant to merit an award of attorney’s fees and costs is whether the offending party knew or should have known that it was engaging in conduct prohibited by Chapter 447, Part II. See Dade County PBA v. Metropolitan Dade County, 8 FPER 13153 (1982). The Commission has previously held that preemployment agreements with individuals concerning mandatory subjects of bargaining constitute an unfair labor practice. Further, the Commission’s broad interpretation of the scope of bargaining should have indicated to the City that it could not reasonably hold the belief that reimbursement for training costs by employees was not a term and condition of employment. Even if its decision to implement the restrictive employment agreement is construed to be a 447.209 management prerogative, the City should nevertheless have known that it would be required to bargain over the impact of that decision on employment terms and conditions. See In re City of Hollywood, 14 FPER 19130 (1988); IAFF, Local 2266 v. City of St. Petersburg Beach, 13 FPER 18116 (1987); but cf. FOP, Miami Lodge 20 v. City of Miami, 12 FPER 17029 (1985), aff’d, 14 F.L.W. 299 (3d DCA Jan. 31, 1989) (Commission found it inappropriate to award fees where the issue of negotiability of urinalysis testing was one of first impression). In addition, the Commission has previously held that direct dealing between public employer and employee, thereby bypassing the certified bargaining agent violates 447.205(1)(a) and (c). Professional Fire Fighters of Pembroke Pines, Local 2292 v. City of Pembroke Pines, 15 FPER 20023 (1988); City of Fort Walton Beach, 11 FPER 16240 (1985); Metropolitan Dade County, 8 FPER 13153 (1982); Taylor County School Board, 7 FPER 12100 (1981). Regardless of the City’s good or bad faith, it should have known that its conduct was prohibited. Therefore, I conclude that the Commission should award reasonable attorney’s fees and costs of litigation to Local 2238. The amount of the award should be determined in the manner provided in Florida Administrative Code Rule 38D-14.004.

IV. CONCLUSIONS OF LAW

Based upon the record as a whole, I make the following conclusions of law:

1. The City of Hallandale is a public employer within the meaning of 447.203(2), Florida Statutes (1987).

2. The Hallandale Professional Fire Fighters Association, Local 2238 is an employee organization within the meaning of 447.203(11), Florida Statutes (1987).

3. By unilaterally requiring newly-hired employees to sign a restrictive pre-employment agreement mandating that fire fighters who voluntarily leave the City’s employment before their second anniversary date pay the City $10.00 per working day between their date of resignation and their second anniversary date for reimbursement of training costs, the City violated 447.501(1)(a) and (c), Florida Statutes (1987).

4. The City violated 447.501(1)(a) and (c), by communicating directly to employees that it intended to require prospective fire fighters to sign a restrictive employment agreement thereby bypassing Local 2238.

5. An award of reasonable attorney’s fees and costs to the prevailing party, Local 2238, is appropriate.

V. RECOMMENDATION

I recommend that the Commission adopt the foregoing findings of fact and conclusions of law, direct the City to post an appropriate notice, to rescind Resolution No. 88-15 thereby withdrawing the restrictive employment agreement, to bargain with Local 2238, upon request, any plan to recover training costs from employees it represents, and to pay Local 2238’s reasonable attorney’s fees and costs incurred in litigating this unfair labor practice charge.

Notes:

1. All statutory citations are to the 1987 edition of the Florida Statutes.

2. None of these three affirmative defenses have been pled and, therefore, need not be considered. See Fla. Admin. Code Rule 38D-21.005(3).

3. For a thorough discussion of the rationale behind the Commission’s policy choice in this area and its approval by the courts, see Fraternal Order of Police, Fort Lauderdale Lodge 31 v. City of Fort Lauderdale, 14 FPER 19150 at 392-3 (1988), appeal filed, No. 88-01520 (Fla. 1st DCA June 10, 1988).