Member Cannot Bring Bad Faith Bargaining Charge Against Union

Written on 01/05/2023

Lodge 93 of the Fraternal Order of Police represents two collective bar­gaining units at the Orange County Sheriff’s Department in Florida. One is made up of deputies and another of sergeants and corporals.

On August 4, 2022, the Sheriff’s Negotiation Team presented a wage proposal to address several concerns raised by Lodge 93 in previous nego­tiations sessions. The Sheriff Office’s wage proposal establishes a new pay plan consisting of at least a 13% wage increase for all bargaining unit members over the course of a three-year term. Additionally, the proposal included wage increases to the off-du­ty pay rate, longevity pay, and shift differential pay. The proposal also added Martin Luther King Jr. day as an additional holiday.

Lodge 93 rejected the proposal and declared an impasse. A month after the proposal was presented, Jeff Stinson, the president of Lodge 93, sent out a memo explaining the decision to declare impasse and what would happen next.

Sergeant John Montenegro dis­agreed with Lodge 93’s position. Believing that the County’s August 4 proposal “was substantial and has several improvements,” he filed an unfair labor practice complaint with Florida’s Public Employment Relations Commission. Montenegro argued that Lodge 93’s refusal to tentatively agree on the proposed contract was interfering with his rights and that Lodge 93 had failed to bar­gain in good faith with the Sheriff’s Office. Montenegro demanded that both units have the opportunity to vote on the “last proposed contract” before filing for impasse.

The General Counsel for PERC dismissed Montenegro’s complaint. The General Counsel ruled that “Montenegro does not have the stand­ing to bring the claim he is alleging. Since at least 1982, the Commission has held that Florida’s bargaining laws are enactments intended to ensure the performance of the mutual bargaining obligation imposed upon the public employer and the employees’ collective bargaining representative.

“Good faith bargaining is a bilat­eral duty between the parties to the collective bargaining agreement, and those entities are the real parties in interest when it comes to the filing of unfair labor practices involving good faith bargaining. Essentially, the law is intended to protect the real parties in interest – the employer and the labor organization – and not the individual bargaining unit employees.

“To allow an individual to bring a bad faith bargaining charge would permit any individual in the bar­gaining unit to attempt to bargain directly with their employer, which is contrary to the concept of ‘collective’ bargaining. Moreover, it would permit individual members of the bargaining unit to derail the negotiations taking place between the public employer and employee organization by filing unfair labor practice charges against both of the real parties at interest.

“To the extent that Montenegro intended his charge to raise a claim of breach of the duty of fair represen­tation, both the courts and the Com­mission accord unions a wide range of reasonableness within which to negotiate collective bargaining agree­ments. Any substantive examination of a union’s performance, therefore, must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.

“In the instant case, the charge does not contain allegations that Lodge 93 has acted in a way that is irrational, arbitrary, or far outside the wide range of reasonableness. Rather, from the supporting documents, it appears that Lodge 93 made the deci­sion to declare impasse based on issues aside from just wages and that there are other articles impacting working conditions and quality of life that are still at issue. In short, nothing in the charge or supporting documents suggest that Lodge 93 did anything in­appropriate. It simply made a tactical decision that was within the discretion of Lodge 93 to make.

“Moreover, because negotiations are continuing, it is not possible to determine the final product of the bargaining process yet. Inevitably, there will be differences of opinion as to the best negotiation strategy for a party to use. Montenegro appears to be second-guessing Lodge 93’s decision to declare impasse, and continuing with the impasse process, instead of accepting the Sheriff’s proposal as written and voting on it. Without additional allegations or evidence, the facts and arguments presented do not establish a breach of the duty of fair representation.”

Montenegro v. FOP, Lodge 93, 2022 WL 13570808 (Fla. PERC Gen. Counsel 2022).

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