Understanding Arbitration Procedures in Florida Education

Explore Florida's arbitration laws, procedures, recent decisions in education arbitration, and the statutory requirements for arbitration under Florida's Public Employee Relations Act (PERA). Discover the powers and limitations of arbitrators, who is entitled to arbitration, and the subject matter that can be arbitrated in the context of collective bargaining agreements.

• Florida Education
• Arbitration Laws
• Arbitration Procedures
• Public Employee Relations Act
• Arbitrators

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1. Arbitration Decisions in Florida Education Nathan J. Paulich, Garrison Cohen & Alex M. Sarsfield Thompson, Sizemore, Gonzalez & Hearing, P.A. npaulich@tsghlaw.com; (813) 273-0050

2. Introduction Overview of Florida s arbitration laws Review of arbitration procedures Explanation of case types in education arbitration Review of recent arbitration decisions in Florida education

3. Statutory Requirement for Arbitration Florida s Public Employee Relations Act ( PERA ) Each public employer and bargaining agent shall negotiate a grievance procedure to be used for the settlement of disputes between employer and employee, or group of employees, involving the interpretation or application of a collective bargaining agreement. 1 The grievance procedure shall have as its terminal step a final and binding disposition by an impartial neutral, mutually selected by the parties. 2 1. 447.401, Fla. Stat. (2017). 2. Id.

4. Arbitrators Powers and Limitations Arbitrators interpret the collective bargaining agreement. An arbiter shall not have the power to add to, subtract from, modify, or alter the terms of a collective bargaining agreement. 4 Any action outside interpreting the language of the collective bargaining agreement may result in vacating of an arbitration award. 4. 447.401, Fla. Stat. (2017).

5. Who is entitled to Arbitration? All public employees have the right to a grievance procedure regardless of union membership.5 Unions are not required to process grievances for employees who are not members.6 Even if an employee is a union member, the Union is not required to pursue the grievance if it believes the grievance lacks merit.7 5. 447.401, Fla. Stat. (2017). 6. Id. 7. Galbreath v. Sch. Bd. of Broward Cty., 446 So. 2d 1045, 1049 (Fla. 1984).

6. Subject Matter of Arbitration CBA interpretation or application must be arbitrated pursuant to PERA.8 Whether other types of disputes constitute an arbitrable grievance under the CBA is based on the contract s provisions.9 Compelling the parties to arbitrate will depend on: 1) Whether a valid written agreement exists containing an arbitration clause, 2) Whether an arbitrable issues exists, 3) Whether the right to arbitration was waived.10 8. 447.401, Fla. Stat. (2017). 9. Burt v. Duval Cty. Sch. Bd., 481 So. 2d 55, 57 (Fla. 1st DCA 1985). 10. Piercy v. Sch. Bd. of Washington Cty., Fla., 576 So. 2d 806, 807 (Fla. 1st DCA 1991).

7. Subject Matter of Arbitration: Just Cause Instructional employees hired prior to July 1, 2011 Each person employed as a member of the instruction staff . . . shall be entitled to and shall receive a written contract [of employment]. All such contracts . . . shall contain provisions for dismissal during the term of the contract only for just cause. 11 Just cause includes, but is not limited to: Immorality, misconduct in office, incompetency; Two consecutive annual performance evaluation ratings of U; Two annual performance evaluation ratings of U within a 3-year period; Three consecutive annual performance evaluation ratings of NI or a combination of NI and U; Gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.12 Professional service contract and continuing contract.13 11. 1012.33(1)(a), Fla. Stat. (2017). 12. Id. 13. 1012.33(3)-(4), Fla. Stat. (2017).

8. Subject Matter of Arbitration: Just Cause Instructional employees hired on or after July 1, 2011 Any instructional personnel with an annual contract may be suspended or dismissed at any time during the term of the contract for just cause. 13 Just cause includes, but is not limited to: immorality; misconduct in office; incompetency; gross insubordination; willful neglect of duty; or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.14 13. 1012.335(4), Fla. Stat. (2017). 14. 1012.33(5)(a) (f), Fla. Stat. (2017).

9. Subject Matter of Arbitration: Just Cause Florida Administrative Code Florida s Administrative Code defines and clarifies what constitutes each charge of just cause.15 15. Rule 6A-5.056 F.A.C. (2017).

10. Subject Matter of Arbitration: Just Cause When is just cause not required? Non-renewal of contracts Annual contract means an employment contract for a period of no longer than 1 school year which the district school board may choose to award or not award without cause.16 Probationary employees17 Probationary contract means an employment contract for a period of 1 school year awarded to instructional personnel upon initial employment in a school district. Probationary employees may be dismissed without cause or may resign without breach of contract. 16. 1012.335(1)(a), Fla. Stat. (2017) (emphasis added). 17. 1012.335(1)(c), Fla. Stat. (2017).

11. Subject Matter of Arbitration: Just Cause Educational support employees The Superintendent can recommend termination of educational support employees for reasons stated in the collective bargaining agreement or in the district school board rules if no collective bargaining agreement exists.18 In the event a district school superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. 19 18. 1012.40(2)(b), Fla. Stat. (2017). 19. 1012.40(2)(c), Fla. Stat. (2017).

12. Subject Matter of Arbitration: Just Cause Challenging a suspension/termination: Instructional Staff Instructional staff that wish to challenge their suspension or termination may request a hearing conducted by the district school board or by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services.20 These hearings are typically governed by Florida s Administrative Procedures Act.21 A district school board and a union can bargain to have arbitration proceedings replace this procedure to preserve the procedural due process rights for employees with a right to employment.22 20. 1012.33(6)(a)1, Fla. Stat. (2017); 1012.335(4), Fla. Stat. (2017). 21. 120.51, Fla. Stat. et. seq. (2017). 22. 1012.33(1)(a), Fla. Stat. (2017); see also 1012.335(2), Fla. Stat. (2017).

13. Subject Matter of Arbitration: Just Cause Challenging a suspension/termination: Educational Support Employees In the event a district school superintendent seeks termination of an employee, the district school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by district school board rule in the event there is no collective bargaining agreement. 23 The district school board still can choose to send an educational support staff decision to the Department of Administrative Hearings. 23. 1012.40, Fla. Stat. (2017).

14. The Arbitration Proceedings Best practices prior to arbitration Overview of Arbitration Proceedings Initiating arbitration Presentation of the case Briefing Award

15. The Arbitration Proceedings: Initiating Arbitration A grievance must be filed by the employee/union in accordance with the steps identified in the collective bargaining agreement. If the employee/union is not satisfied with the grievance outcome at lower grievance steps, the collective bargaining agreement will identify how to initiate arbitration. Parties can agree to bypass the lower steps and proceed directly to arbitration.

16. The Arbitration Proceedings: Presentation A hearing is conducted before the arbitrator. Parties present their evidence in support of their argument. Order of presentation depends on the type of case. Typically, the party with the burden of proof presents first. Discipline: district school board goes first Contract interpretation/management action: employee/union goes first An arbitrator may allow the employee/union to present first as the grieving party, but may never establish a clear burden of proof.24 24. See ELKOURI & ELKOURI, HOWARBITRATIONWORKS 8-104 (Kenneth May, 8th ed. 2016).

17. The Arbitration Proceedings: Presentation Arbitration proceedings rules Parties can agree to use specific rules to apply to the arbitration The collective bargaining agreement may identify the applicable rules Rules can be established depending on the arbitration institution American Arbitration Association.25 Federal Mediation and Conciliation Services.26 25. AMERICAN ARBITRATION ASSOCIATION, Employment Arbitration Rules and Mediation Procedures, (Revised Oct. 1, 2017). 26. 29 C.F.R. 1404.1 (2018).

18. The Arbitration Proceedings: Briefing Each party s written submission summarizing the evidence and witnesses presented at the arbitration hearing. Contents of the brief Issue brought before the arbitrator; Summary of the relevant facts; Relevant collective bargaining agreement provisions, applicable policies, statutes, codes, and rules; Legal argument support the parties position; and A conclusion with a recommendation to the arbitrator on how to decide

19. The Arbitration Proceedings: Award The final decision rendered by the arbitrator. Arbitrator can choose to: Sustain the grievance (find for the employee/union); Deny the grievance (find for the district school board); or Sustain in part and deny in part e.g. finding suspension was warranted, but reducing the suspension from 10 days to 3 days.

20. The Arbitration Proceedings: Challenging an Award Arbitration awards are binding on parties that agree to arbitrate.27 However, Florida law provides a way to set aside arbitration decisions.28 To vacate (or set aside) an arbitration award, a party challenging the award must comply with the statutory procedural requirements and assert a valid legal reason for vacating the award. 27. 447.401, Fla. Stat. (2017). 28. 682.13(2), Fla. Stat. (2017).

21. The Arbitration Proceedings: Challenging an Award Procedural requirements for vacating an arbitration award A motion to vacate an arbitration award must be filed within 90 days of receiving notice of the final award.29 The deadline can be extended if the grounds for the vacating are based on fraud. Grounds for vacating an arbitration award Grounds for vacating are limited. There is a high degree of conclusiveness for arbitration awards. 30 Arbitration compared to school board or DOAH decision. 29. 682.13(2), Fla. Stat. (2017). 30. Johnson v. Wells, 73 So. 188 (Fla. 1916); Visiting Nurse Ass'n of Florida, Inc. v. Jupiter Med. Ctr., Inc., 154 So. 3d 1115, 1135 (Fla. 2014) (quoting Johnson, 73 So. at 190).

22. The Arbitration Proceedings: Challenging an Award Grounds for vacating an arbitration award include:31 The award was procured by corruption, fraud, or other undue means; There was: Evident partiality by an arbitrator appointed as a neutral arbitrator; Corruption by an arbitrator; or Misconduct by an arbitrator prejudicing the rights of a party to the arbitration proceeding An arbitrator refused to postpone the hearing upon showing of sufficient cause for postponement, refused to hear evidence material to the controversy, or otherwise conducted the hearing contrary to statute so as to prejudice substantially the rights of a party to the arbitration proceeding; 31. 682.13(1), Fla. Stat. (2017).

23. The Arbitration Proceedings: Challenging an Award Grounds for vacating an arbitration award include(cont.):32 An arbitrator exceeded the arbitrator's powers; There was no agreement to arbitrate, unless the person participated in the arbitration proceeding without raising the objection not later than the beginning of the arbitration hearing; or The arbitration was conducted without proper notice of the initiation of an arbitration so as to prejudice substantially the rights of a party to the arbitration proceeding. 32. 682.13(1), Fla. Stat. (2017).

24. The Arbitration Proceedings: Challenging an Award Arbitration awards cannot be set aside for error in fact or law. Arbitrators in statutory arbitration proceedings cannot be set aside for mere errors of judgment either as to law or as to the facts. 33 If the award is within the scope of the submission, and the arbitrators are not guilty of the acts of misconduct set forth in the statute, the award operates as a final and conclusive judgment. 34 An award cannot be set aside based on illegality.35 33. Schnurmacher Holding, Inc. v. Noriega, 542 So. 2d 1327, 1328 (Fla. 1989). 34. Id. 35. Visiting Nurse, 154 So. 3d at 1134.

25. The Arbitration Proceedings: Post Vacation If an arbitration award is vacated, a rehearing may occur based on the circumstances. Award is vacated because there was no agreement to arbitrate = no hearing.35 Award is vacated because the award was based on fraud, corruption, misconduct = If rehearing is ordered, it must be with a new arbitrator.36 Award is vacated for other statutory reasons = rehearing may be ordered and may be before the same arbitrator.37 If the motion to vacate is denied, the court will confirm the arbitration award.38 35. 682.13(3), Fla. Stat. (2017). 36. Id. 37.Id. 38. 682.13(4), Fla. Stat. (2017).

26. Types of Arbitration Cases Some types of arbitration cases: Contract interpretation Challenging management actions Challenging validity of discipline

27. Contract Interpretation Arbitration Source of the Grievance The collective bargaining agreement itself is the source of the grievance and arbitration. These grievances interpret the language of the collective bargaining agreement. The right to arbitrate the interpretation of the collective bargaining agreement is found in 447.401, Florida Statutes and is commonly expressly stated in the collective bargaining agreement. Applicable CBA provisions The applicable provisions will depend heavily on the subject matter underlying the grievance. Arbitrations can focus on provisions such as seniority rights, insurance benefits, leave plans, compensation structure, or any other matter addressed in the collective bargaining agreement. Burden of Proof Unlike other grievance arbitrations where an adverse action is being challenged, contract interpretation arbitrations typically only seek clarity on contract terms. Some arbitrators allow the parties toput on their evidence (in an order agreed upon) and allow the arbitrator to interpret the collective bargaining agreement based on the arguments of the parties.39 39. ELKOURI & ELKOURI, HOWARBITRATIONWORKS 8-104 (Kenneth May, 8th ed. 2016).

28. Challenging Management Action Arbitration Source of the Grievance Grievances challenging district school board actions. The employee/union is challenging that right, claiming that the district school board s actions were a violation of the collective bargaining agreement. Examples of arbitration issues Some examples of these actions include: Reassignment of bargaining unit employees.40 Subcontracting/assigning union-protected work to non-union employees.41 The School Board s process and procedures for evaluations. Note: While the substantive scores of evaluations may not ordinarily be challenged,42 the process and procedures surrounding the evaluation may be appealed through arbitration.43 40. In re Education Minn, Greenway Local 1130 and ISD 316, Greenway, Minn., BMS Case No. 14PA0132 (Ver Ploeg, 2014). 41. In re School Service Employees Union, Local 284 v. ISD No. 727, Big Lake, Minn., BMS Case No. 17-PA-0139 (Ver Ploeg, 2017). 42. 1012.34, Fla. Stat. (2017). 43. In re Volusia Teachers Organization v. Volusia County School Board, AAA Case NO.: 01-15-0005-4650 (Gold, 2016).

29. Challenging Management Action Arbitration Applicable CBA provisions Contract specific provisions The contract may specifically enumerate the matters subject to exclusive, primary, or limited control by management.44 Residual / Reserved rights Many arbitrators recognize that residual rights are always reserved in the contract. 45 The underlying premise of collective bargaining agreements is that management retains all rights of a common law employer which are not bargaining away or limited by the collective bargaining agreement. 46 Inherent rights The question may arise whether rights not expressly mentioned in the management rights provisions are reserved to the district school board. Some arbitrators believe that inherent rights are reserved absent an express provision limiting that right. Others have held that there are certain implied obligations granted to the employer not contained in the collective bargaining agreement. These issues remain unsettled and can vary depending on the provisions of the collective bargaining agreement and the facts of the case.46 44. 47:31.Management rights clauses, 12 Emp. Coord. Labor Relations 47:31. 45. ELKOURI & ELKOURI, HOWARBITRATIONWORKS 13-4 (Kenneth May, 8th ed. 2016). 46. St. Louis Symphony Soc y, 70 LA 475, 481 82 (Roberts, 1978). 47. ELKOURI & ELKOURI, HOWARBITRATIONWORKS 13-7 (Kenneth May, 8th ed. 2016).

30. Challenging Management Action Arbitration Burden of Proof Employee/union has the burden of proof to demonstrate the district school board s actions were a violation of the collective bargaining agreement.48 Standard of proof The applicable standard of proof required can vary depending on the collective bargaining agreement. The standard can be stated in the contract, be stipulated to by the parties, or presented to the arbitration for decision.49 48.ELKOURI & ELKOURI, HOWARBITRATIONWORKS 15-25 (Kenneth May, 8th ed. 2016). 49. STEPHEN F. BEFORT & LAURA J. COOPER, EMPIRICAL ANALYSISOF HOW ARBITRATORS HANDLE DISCHARGE & DISCIPLINE ARBITRATIONS: THE RESULTSMAYSURPRISEYOU, A.B.A. Lab. & Emp., (2011).

31. Challenging Discipline Arbitration Source of the Grievance Discipline grievances begin when a district school board undertakes disciplinary action against an employee and the employee challenges that discipline as improper or excessive. Just Cause requirement A collective bargaining agreement can include an express provision stating that discipline should not be taken against an employee except for just cause.50 Educational support staff still can challenge a termination or suspension, but do not have a statutory standard for just cause similar to instructional staff.51 50. 1012.33, Fla. Stat. (2017); 1012.335, Fla. Stat. (2017). 51. 1012.40, Fla. Stat. (2017).

32. Challenging Discipline Arbitration Burden of proving just cause The district school board has the burden of proving the disciplinary action is supported by just cause. This standard is applied to all disciplinary actions regardless of the type of discipline applied. Standard of proof for just cause The standard applied to discipline cases is unsettled and can vary. Arbitrators typically impose on of the following standards: Preponderance of the evidence (standard applied to DOAH hearings52) Clear and convincing evidence Evidence Beyond a reasonable doubt (highest standard)53 Higher standards may be used for cases involving criminal offenses, cases of moral turpitude, or sexual harassment claims.54 52. McNeil v. Pinellas Cty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996). 53. Id. 54. ELKOURI & ELKOURI, HOWARBITRATIONWORKS 8-106 (Kenneth May, 8th ed. 2016).

33. Add a footer Arbitration decisions: School Board of Highlands County, FMCS No. 15-52050-3 (Shulman, 2015) Whether just cause existed to suspend ESE teacher who was a union steward. In re School Board for Charlotte County and Charlotte Florida Education Association (Ratliff), FMCS No. 17-51521-3 (Kilroy, 2017) Whether just cause existed to reprimand, suspend, and terminate teacher for inappropriate touching, practicing chiropractic medicine, and inappropriate language, respectively. School Board of Volusia County, AAA Case No. 01-15-0005-4650 (Gold, 2016) Whether district violated CBA related to evaluations. In re Schneider and CFEA Local 7405, FMCS No. 16-53425-3 (Mantione, 2016) Whether just cause existed to terminate teacher for taking ungraded quizzes for her kids and engaging in untruthful conduct during the investigation.

34. Add a footer Arbitration decisions: School Board of Seminole County, FMCA No. 14-00515-3 (Brady, 2017) Whether just cause existed to terminate teacher for sexual misconduct on minor when teacher was found not guilty in criminal trial. In re Volusia Teachers Organization and Volusia County School Board, AAA Case No. 01-16-0001-1321 (Shulman, 2016) Whether teacher was a probationary or annual contract teacher at the time of termination. In re Volusia County School Board and American Federal of State, County, and Municipal Employees, Florida Local 850, FMCS No. 16-02632-3 (Hays, 2016) Whether just cause existed to terminate a bus driver.