Bullies at Work: New Challenges for Institutions and HR Professionals

Health Care Bargaining: Strategies
for Change Without Violating P.E.R.A.
Deborah C. Brown
Thompson, Sizemore, Gonzalez & Hearing, P.A,
May 15, 2014
• PERC view on health care as mandatory subject
of bargaining
• Most likely litigation issues when health care is
in dispute
• Possible bargaining option and strategies
Health Care as a Mandatory Subject of
• “Wages, Hours, Terms and Conditions of
• An issue or subject regarding which either party
is legally obligated to bargain upon the request
of the other
• Position can be insisted upon to the point of
impasse and imposed through legislative body
General Rule on Health Care
• City of Dunedin, 8 FPER ¶13102 (1982)
▫ Public employer’s payment of insurance
premiums is term or condition of employment
▫ Union entitled to notice of increase and right to
bargain before implementation
▫ Generalized language alone with zipper clause not
a waiver
Why Health Care Bargaining in
• Often at the mercy of the insurer
• Plan year and CBA year may not match
• Even if self insured, delays that often accompany
resolution of bargaining disputes problematic
• Challenges compounded with multiple units
• Crafting language that can be imposed and is
effective is difficult
• And now we have ACA…
Likely ULP’s if Things Go South
• Refusal to Bargain
▫ Premature impasse declaration
▫ Unlawful unilateral change
▫ Imposition of waiver at impasse
Premature Impasse Declaration
• City of Cocoa, 30 FPER ¶295 (2004)(to sustain
charge, must establish that a “reasonable period
of negotiation” has not transpired, meaning CP
must allege and demonstrate that the
respondent refused to meaningfully negotiate
mandatory subjects of bargaining by declaring
an impasse before negotiating those issues)
• No deadlock required like NLRA
• Recent cases suggest a stay of impasse has
become more unlikely as interim measure
Unlawful Unilateral Change
• Absent clear and unmistakable waiver, exigent
circumstances, or legislative body action after
bargaining impasse, changes in status quo of
mandatory subjects cannot be made by public
employer without providing notice to union and an
opportunity to conduct meaningful negotiations,
before implementing the change. The Florida School
for the Deaf and the Blind Teachers United v. The
Florida School for the Deaf and the Blind, 11 FPER ¶
16080 (1985), aff’d., 483 So.2d 58 (Fla. 1st DCA
• Such unilateral changes constitute a per se violation
of Section 447.501(1)(a) and (c), Florida Statutes
Imposition of Waiver at Impasse
• Palm Beach Junior College Board of Trustees v. United
Faculty of Palm Beach Junior College, 475 So. 2d 1221
(Fla. 1985), aff’g in part and rev’g in part, 425 So. 2d 133
(Fla. 1st DCA 1983), aff’g 7 FPER ¶12300 (1981)(unfair
labor practice for a public employer to legislate or
impose a waiver of the right to bargain over changes in
mandatory subjects)
• Language granting unilateral right to change would
constitute a waiver
• But language proposed must actually contain a waiver
(State of Florida DMS, 20 FPER ¶25102 (1994))
• And see Clay County Board of County Commissioners,
40 FPER ¶121 (2013) on switching back and forth
Defenses To ULP Charges
Most Common Defenses
• Statute of Limitations
• Unilateral change defenses: (1) waiver; (2) no
objective reasonable expectation; (3) legislative
body action; (4) exigent circumstances
• Whether subject has been bargained
• Effectiveness of demand
• Financial urgency?
Statute of Limitations
• Six months by statute; typically runs from notice,
not when effects felt
• Central Florida PBA v. City of Casselberry, 25 FPER
¶30305 (1999)(Commission dismissed charge
alleging unlawful unilateral change in promotional
process and refusal to bargain impact; Commission
held that, by failing to timely challenge change,
which the Union knew or should have known about,
change had now become “status quo” and no impact
bargaining obligation remained)
Unilateral Change Defenses
No objective reasonable expectation
Legislative body action
Exigent circumstances
Maybe financial urgency???
Precursor: Do You Have a Change?
• City of Coral Gables, 9 FPER ¶14912 (1983)
▫ Suggesting a change in insurer alone without change
in benefits may not be sufficient to constitute
unilateral change
▫ But see, School Board of Palm Beach County, 9 FPER
¶14290 (1983)(answer might be different if employer
is new carrier)
▫ And State of Florida, 14 FPER ¶19085 (1988)(charge
on change of HMO carriers where insufficient evidence
of past practice and requirement for bidding, but
noting some aspects of selection may be bargaining
When You Bargain
• Remember that during bargaining, it is lawful for a party
to propose a non-mandatory subject of bargaining.
(District 2A, Transportation, Technical, Warehouse,
Industrial and Service Employees Union, Affiliated with
American Maritime Officers v. Canaveral Port Authority,
26 FPER ¶ 31221 (2000), aff’d., 799 So. 2d 1062 (Fla. 5th
DCA 2001).)
• But if impasse resolution process used, neither party
may insist that a special magistrate consider a nonmandatory subject of bargaining
• And of course a legislative body may not impose a nonmandatory subject such as a waiver of a union' s right to
bargain over mandatory subjects of bargaining
Waiver After Expiration
• United Faculty of Florida v. Florida State
University Board of Trustees, 34 FPER ¶159, per
cur. aff’d., 9 So. 3d 622(Fla. 1st DCA 2009)
• Not an insurance case, but stands for
proposition that a waiver that concerns itself
with a mandatory subject of bargaining does
indeed survive contract expiration
• In this case, it was the ability to grant
discretionary pay increases
Impact Bargaining?
• City of Fort Pierce, 36 FPER ¶ 87 (2010), aff’d.,
51 So.3d 1158 (Fla. 1st DCA 2011)
▫ Waiver found in language
▫ Impact argument kicked out based on pleading
No Objective Reasonable Expectation
Sheriff of Clay County, 36 FPER ¶402 (2010)
• The disjunctive test affirmed (i.e., a past practice
cannot be the status quo unless it is both
unequivocal and has existed substantially unvaried
for a significant period of time, and could reasonably
be expected to remain unchanged)
• Commission concluded that because health benefits
were not substantially unvaried for significant
period of time, employees could not reasonably
expect no change
More on Past Practice
• DeSoto County, 13 FPER ¶18215 (1987) Precontract increase in dependant health premium
and employee/dependant deductibles dismissed
• Not enough to show the terms in existence at
time of certification
• In absence of contract, “terms and conditions” to
be viewed dynamically over time and the status
quo against which change is considered must
take into account past practice and past patterns
of change
Expectation Analysis is Fact Specific
City of Tallahassee, 8 FPER ¶13400 (1982), aff'd.
mem., 445 So.2d 604 (Fla. 1st DCA 1984).
• Unilateral change case
• Increase in premiums for newly certified
supervisory police unit unlawful
• City lost arguments on (1) status quo and
objective reasonable expectations based on
historic treatment on unit pre-certification, and
(2) waiver by ineffective demand
What Does a Waiver Look Like?
• Palm Beach County School Board, 9 FPER
¶14306 (1983)
• “During FY 83, the Board agrees to pay the full
amount of the cost of health insurance for
regular employees who elect individual coverage.
Any increases in cost for individual coverage
after June 30, 1983, shall be borne by the
employee, unless contrary to the terms of a
successor agreement.”
So What About Retiree Insurance
• City of Gainesville, 65 So.3d 1070 (2011)
▫ Right of current employees to bargain retiree
contributions now established
▫ Caution must be exercised
The Polk Cases
• Polk Education Association v. School District of
Polk County, 36 FPER ¶ 260 (2010), aff’d., 100
So. 3d 13 (Fla. 2d DCA 2011)
• Polk County Non-Industrial Employees Union,
Local 2227, AFSCME v. School District of Polk
County, 36 FPER ¶ 261 (2010), aff’d., 100 So. 3d
16 (Fla. 2d DCA 2011)
The Polk Cases
• Committee participation by unions did not carry
the day, but perhaps in part because new options
not considered at Committee level were
• Neither case had adequate language for waiver
• Exigent circumstances not established
• Whether subject has been bargained
▫ See City of Deerfield Beach, 38 FPER ¶89
(2011)(couched in terms of waiver but noting no
obligation to bargain where you already have and
the CBA contains language)
• Effectiveness of demand
▫ Argued in City of Tallahassee; typically objecting
alone not enough, but for inaction to ripen to
waiver, all circumstances must point to
abandonment of bargaining right)
Subject Bargained
• Lake Worth Utilities Authority, 10 FPER ¶ 15004
▫ Status quo is fixed employer contribution
▫ Maintaining status quo in face of premium
increase after contract expiration not a violation
▫ No obligation to even notify union of change (that
is only triggered by possible change in status quo
or information request)
How Bad is Messing Up?
• Remedy if employer changes plan unlawfully is
generally restoration of status quo
• Fees can be awarded and a notice will be
• Village of Key Biscayne, 39 FPER ¶2 (2012) tells
us interim injunctive relief unlikely
▫ PERC declined request by union to seek injunction
in this case because adequate remedy at law
Bargaining Options and Strategies
• Express Language (no waiver)
• Waiver Options
▫ Buying a Waiver
▫ Waiver by Committee
▫ Waiver by Conscious Yielding
• A Possible Nuclear Option (health care opt out)
Speaker Information
• Deborah C. Brown
o Of Counsel, Thompson, Sizemore, Gonzalez &
Hearing, P.A.
o [email protected]
• The information contained in these materials is
intended as an informational report on legal
developments of general interest. It is not
intended to provide a complete analysis or
discussion of each subject covered. Applicability
to a particular situation depends upon an
investigation of the specific facts and more
exhaustive study of applicable law than can be
provided in this format.

similar documents