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68-74 ORDINANCE NO. 68-74 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF DEI.,I~AY BEACH, FLORIDA, ENACTED PURSUANT TO THE PROVISIONS OF ARTICLE VIII, SECTION 2 (b) OF THE ].968 FLORIDA CONSTI- TUTION A~D CHAPTER 73-129, LAWS OF FLORIDA, THE MUNI- CIPAL HOME RULE POWERS ACT AND SECTION 447.022, FLORIDA STATUTES, CIIAPTER 74-100, LAWS OF FLORIDA: RELATING TO LABOR AND IMPLEMENTING SECTION 6 OF ARTICLE I OF THE CONSTITUTION OF THE STATE OF FLORIDA; PROVIDING TO MI~NICIPAL EMPLOYEES TIlE RIGHT TO ORGANIZE AND BARGAIN COLLECTIVELY AS TO TERMS AND CONDITIONS OF EMPLOYMENT ~2,~]? TO REFRAIN THEREFROM; PROVIDING ~4ET!IOD AND BARGAIN- ING PROCEDURE; CREATING AND PROVIDING ADi,~I~iSTRI~TIO}'.[ BY THE CITY OF DELRAY BEACH PUBLIC EMPLOYEES RELATIONS COMMISSION; PROVIDING FOR CiTY COUNCIL REVIEW OF COMMIS- SION RULES; DEFINING RIGHTS OF PUBLIC EMPLOYEES AND EMPLOYERS; PROVIDING FOR AND CONDITIONS ON PAYROLL DUES DEDUCTION; PROVIDING RULES AND PROCEDURES FOR REGISTRA- TION, RECOGNITION, CERTIFICATION AND DECERTIFICATiON OF EMPLOYEE ORGANIZATIONS AiqD BARGAINING AGENTS; PROVIDING PAYF~ENT OF FEES AND EXPENSES IN COLLECTIVE BARGAINING PROCESS; PROVIDING GRIEVANCE PROCEDURES; PROVIDING PRO- CEDURES FOR RESOLUTION OF IMPASSE; PROVIDING FACTORS' TO" BE CONSIDERED BY THE SPECIAL MASTER; PROVIDING FOR COM-. PENSATION AND RECORDS; ESTABLISHING UNFAIR LABOR PPJ~C- " 'TICES BY EMPLOYERS, EMPLOYEE ORGANIZATIONS P~[D OTHERS; .' PROVIDING PROCEDURES TO RESOLVE N.,~LAWFUL ACTIONS AND PRACTICES; ESTABLISHING PENALTIES AND REMEDIES; PROV'ID- ING INJUNCTIVE RELIEF; PROVIDING EFFECT ON }ZERIT CIVIL SERVICE SYSTEMS AND STATE AI~D LOCAL CONTROL OF SAME; ADOPTING THE PROVISIONS OF ~ 447.023, FLORIDA STATUTES, AS A PART HEREOF; PROVIDING FOR SEVERABILITY; PROVIDING FOR CONTINUED EFFECTIVENESS OF EXISTING AGREE- MENTS; REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES iN CONFLICT HEREWITH; PROVIDING AN EFFECTIVE DATE. WHEREAS an implementation of Section 6, Article I of the Constitution of the State of Florida is necessary to promote harmonious and cooperative relat~ionships between government and its employees, and to protect the public by assuring at all times the orderly and uninterrupted operations and func- tions of government; and WHEREAS the encouragement or discouragement, in any way, of a public employee organization will interfere with a public employee's right to belong to such an organization or refrain from so doing; and WHEREAS public employee strikes and other improper actions by public ~mployees interfere with. the proper rendering of public service and lead to turmoil and disruption in governmental functions and services, and the ].ack of statutory precautions, such as the fai].ure to exclude managerial employees and supervisory employees from an employee organizatio~ render a public ployer extremely vulnerable to an illegal strike; and WHEREAS the first duty of a public employer is nO'.. profit but relia- ble and continuous service to the citizens which established it; and WHEREA.q the public emp'loyer's duty of service includes, as an econo- mic consideration, maintaining a proper level of taxation and other financial assessments; and WHEREAS the harm caused by an illegal strike against a public service or facility has a pervasive effect on the lives of every citizen because of its disruption of basic governmental functions; and W~EREAS a local commission established by a political subdivision is best suited to assess the economic and other factors that influence the al- ternatives available to a public employer and its employees; and WHEREAS Section 447.022 of the Public Employment Relations Act, a part of Chapter 74-100, Laws of Florida provides for the adoption of a local ordinance, resolution, or charter' amenclment, in lieu of the state Public Employment Relations Act; and WHEREAS the provisions of Article VIII, Section 2 (b), of the 1968 Florida Constitution and Chapter 73-129, Laws of Florida, the Municipal Home Rule Powers Act, authorize the adoption of local ordinances of this nature; and . WHEREAS it is in the interest of the betterment of relations between the City of Delray Beach and its employees, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DELRAY BEACH AS FOLLOWS: 1.001 Statement of policy is declared that the public policy of the City of Delray Beach and the purpose of this ordinance is to provide imple- mentation of Section 6, 'Article I of the Constitution of the State of Florida pursuant to the provisions of Article VIII, Section 2(b) of the 1968 Florida Constitution and Chapter 73-129, Laws of Florida, the Municipal Home Rule Powers Act and Section 447.022, Florida Statutes, and to promote harmonious and cooperative relationships between government and its employees, both collectively and individually, and to protect the public, by assuring, at all times, the orderly and uninterrupted operations and functions of government. It is the intent of the City Council that nothing herein shall be construed to either encourage or discourage organization of ~ublic employees. These policies are best effectuated by: (1) ' Granting to public employees the right of org. anization and rep- resent, ation; (2) Requiring the City Manager or his duly authorized designees to negotiate with bargaining agents duly certified to represent public, employee~, (3) Creating a public employees relations commission to assist in resolving disputes between public employees and the City; and (4) Recognizing the constitutional prohibition against strikes by public employees and providing remedies for violations of such prohibition. 1.002 -- Definitions - As used in this ordinance: (1) "Commission" means t~.e public employees relations commission cre- ated by Section 1.003 of this ordinance. (2) "Public employer" or "employer" means 'the City of Delray Beach and any subdivision or agency thereof which the conunission determines has sufficient legal distinctiveness to properly carry out the functions of a public employer.. - 2 - Ord. No. 68-74 (3) "Public employee" means any person employed by the City of Delray Beach and any subdivision or agency thereof except (a) those persons appoint- ed by the City Manager and/or City Council or those persons elected by the people, agency heads, members of boards and commissions, (b) persons holdin~ ~ positions by appointment or employment in the organized militia of the State,' (c) individuals acting as negotiating representatives for employer authori- ties, (d) persons designated by the City.of D~e~ray Beach and any subdivision or agency thereof as managerial or c0nfidenfiaI'" employees pursuant to the criteria contained herein, subject to .review upon application to the public employees relations commission. (4) "Managerial employees" are those, employees generally having au- thority in the interest of the public employer who (a) formulate policy which is applicable throughout the bargaining unit, or (b) may reasonably be re- quired on behalf of the employer to assist directly in the preparation for and conduct of collective bargaining negotiations, 'or (c) have a role in the administration of agreements resulting from collective bargaining negotia- tions, or (d) have a significant role in personnel administration or in em- ployee relations, or (e) have a role in .the preparation and administration, of budgets for any public agency~or institution or subdivision thereof, provided that such roles are not of a merely routine, clerical or ministerial nature 5nd require the exercise of independent judgment. (5) "Confidential employees" are persons who act in a confidential capacity with respect to financial matters, or who assist or aid managerial employee's as defined in 1.002 (4) of this ordinance with r~spect to financial labor relations and other matters. (6) "Strike" means the concerted failure to report for duty, or the con~erted absence of employees from their positions, or the concerted stop- page of work', or the concerted submission of resignations, or picketing, or boycotting in lieu of the performance of duty, or sanctioning or refusing,to cross a picket line or disruptively demonstrating or taking part in job actions where rules and procedures are followed in detail for the purpose of impa. iring the rate work is performed, or omitting to perform or performing any act, the results of which are detrimental to the best interests of that segment of the public which the employer and its employees have a duty to serve, or the concerted abstinence in whole or in part by any group of em- ployees from the full and faithful performance of the duties of employment with a public employer, for the purpose in whole or in part of inducing, influencing, condoning or coercing a change in the terms and conditions of emplosanent or the rights, privileges, or obligations of public employment or participating in a deliberate and concerted course of conduct which in whole or in part adversely affects the services of the public employer, or the con- certed failure to report for work after the expiration of a collective bar- gaining agreement or picketing in furtherance of a work .st°ppage. (7) "Bargaining unit" means either that unit determined by the con~ ion, or that unit determined by the public employer and the public em- ployee organization and approved by the commission to be appropriate for the purposes of collective bargaining, provided however that no bargaining unit shall be defined as appropriate which includes (1) employees of two employers that ar~ not depnrtments or divisions of the public employer (2) supervisory or managerial employees, (3) any~ individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no em- ployer organization shall be certified as the representative of employees in a barga{ning unit of guards if such organization admits to membership or affiliated directly or indirectly with an organization which admits to mem- bership, employees other than guards. Ord. No. (8) "Chief executive officer" for the public employer shall mean the City Manager. (9) "Legislative body" means the governing body of the public employ er or a unit or subdivision thereof having authority to appropriate funds and~ establish policy governing the terms and conditions of employment and which, ~as the case may be, is the appropriate legislative body for the bargaining unit. (10) "Employee organization" or "organization" means any labor organ- ization, union, association, fraternal order, occupational or professional society, or group, however organized or constituted, which represents or seeks to represent any public employee or group of public employees concern- ing any matters relating to their employment relationship with a public employer. (11) "Bargaining agent" means the employee'orgsnization which has been certified by the commission as representing the employess in the bargaining unit as provided in Section 1.009, or its representative. Provided that no employee organization or its international or parent organization or any organization with which the employee organization is affiliated or with which it affiliates in the future has ever participated in an illegal strike again~t any public employer shall be a bargaining agent unless it shall first post a security bond in an amount determined by the commissfon to be sufficient to insure compliance with Section 1.018 of this ordinance and ~447.018, Florida Statutes. ' (12) "Budget submission date" means the date by which, under law or practice, a pubiic employer's budget, or a budget containing proposed expenditures applicable to such public employer, is submitted to or is con- sidered by the legislative body or other similar body of goverrm]ent for final action, or in the absence of any annual budget, the date upon which an annual appropriation ordinance, resolution, or law, for the ensuing fiscal year is required to be introduced before such legislative body, for final action. (13) "Professional employee" means: (a) Any employee engaged in work in any two or more of the following cate.~or ies: 1. Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical-or physical work; 2. Involving the consistent exercise of discretion and judgment in its performance; 3. Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and 4. Requiring advanced knowledge in a field ~ science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education, an app~,,ticeship or train- .lng in the performance of routine mental or physical processes; or (b) Any employee who: -4- Ord. No. 68-74 1. Has completed the course of specialized intellectual instruction and study described in subparagraph 4 of paragraph (a), and .2. Is Performi. ng related work under supervision of a professional- · person to qualify himself to become a professional employee as defined in paragraph (a). (].4) "Collective bargaining" means the performance of the mutual ob- liga'tions of the public employer and the bargaining agent of the employee organization to meet at reasonable times, to negotiate in good faith and to execute a written contra~t with respect to agreements reached concerning the terms and conditions of employment, except that neither party shall be com- pelled to agree to a proposal or'be required to make a concession unless otherwise provided in this ordinance. (15) "Membership dues deduction: means the practice of a public em- ployer of deducting dues and uniform assessments from the 'salary or wages of a public employee upon the presentation to the public employer of cards au- thorizing the deduction of dues, signed by such individual public employee. Such term also means the practice of a public 'employer of transmitting the sums so deducted to such employee organization. Provided however, that a public employer may not agree to provide membership dues deduction to an organization which has engaged in an illegal strike against any public employ- er or that is affiliated with an international or parent organization which has engaged in strikes against public employers. (16) "Civil Service" means any career, civil or merit system used by any public employer. (17') "A significant role in personnel administration or in employe re- lations'' means the authority, in the interest of the employer, to hire, trans- fer, suspend, layoff, recall, promote, discharge or reward employees, or to adjust their grievances,.or effectively reconu'nend such action, if in connec- tion with the foregoing the exercise of such authority requires the use of independent judgment. 1.003 -- Public employess relations commiss'ion -- (1) There is hereby created and established a public employees rela- tions commission, hereinafter referred to as the "commission." The commis- sion shall be composed of three (3) members to be appointed by the City Coun- cil, from persons representative of the public, known for their experience, objective and independent judgment, and who shall not be employed by or ]]old any con~aission with any governmental unit in the state or any employee organ- ization as defined in this ordinance. The City Council shall designate one (1) member as chairman' Members shall serve, for a t'erm of four (4) years, except that beginning on the effective date of this ordinance, one (1) member shall be appointed for a term of two (2) years, one. (1) member for three (3) years, and one (1) member for. four (4.) year's. A vacancy for the unexpired term of a member shall be. filled in the same manner as herein provided for an original appointment. The presence of two (2) members shall constitute a quoruh~ of any called meeting of the commission. The co]mnission in the per- formance of its duties and powers under this ordinance shall not be subject to the control, supervision, or ,~irection by the City Manager or City Council. (2) The chairman and the members of the commission shall decide such time as is necessary to the performance of their duties hereunder. Such con~nissioners shall be compensated as established by resolutions adopted by - 5 - Ord. No. 6~-74 City council from time to time. The chairman and other members shall also be reimbursed for reasonable expenses incurred under this ordinance. The chair- man shall be responsible for the administrative functions of the commission and shall have the authority to employ ~ such personnel as may be necessary to carry out the provisions of this ordinance, and shall be responsible for · submitting a budget to the City Council. (3) Members of the conunission may, after a public hearing, be re- moved by the Council for inefficiency, neglect of duty or malfeasance in office. Vacancies occurring otherwise than through the expiration of term shall be filled for the unexpired term by the City Council. 1.004 -- Commission; powers and duties -- (1) After public hearing, the commission shall adopt, promulgate, amend, or rescind such rules and regulations as it deems necessary and admin- istratively feasible to carry out the provisions of this ordinance, in ac- cordance with Chapter 120, Florida Statutes. (2) To accomplish the objectives and to carry out the duties pres- cribed by this ordinance, the commission may subpoena witnesses, may issue subpoenas to require the production of books, papers, records, and documents which may be needed as evidence of any matter under inquiry, and may adminis- ter oaths and affirmations. (3) In cases of neglect or refusal to obey a subpoena issued to any person, pursuant to Chapter 74-100, Laws of Florida the commission may apply to the circuit court of the county in which the investigations or the public hearings are taking place, and upon application by the commission, the court may issue an order requiring such person to appear before the commission and produce evidence about the matter under investigation. A failure to obey. such order may be punished by the court as a contempt. (4) Any subpoena, notice of hearing or other process or notice of the commission issued under the provisions of this ordinance shall be served personally or by certified mail. A return made and verified by the individ- ual making such service and setting forth the manner of such service is proof of service and a returned post office receipt, when certified mail is used, is proof of service. All process of any court to which application may be made under the provisions of this ordinance shall be served in the county wherein the persons required to be served reside or may be found. (5) The commission shall adopt rules as to the qualifications of persons who may serve as mediators and special masters, shall maintain lists of s.uch qualified persons who are not employees of the conm]ission and shall initiate dispute resolution procedures by sPecial masters pursuant to the provisions of this· ordinance. (6) Pursuant to its established procedures, the con~nission shall resolve questions and controversies concerning claims for recognition as the bargaining agent for a bargaining u.nit, determine or approve units most appropriate for purpos, es of collective bargaining and investigate charges of engagement in prohibited practices, and charges of striking by public employ- ees. 1.005 -- Public employer's rights -- (a) It is the right of the pub- li.c employer to determine unilaterally the purposo of each of its constituent departments, set standards of services to be offered to the public, and exer- Ord. No. 68-74 cise control and discretion over its organization and operation. It is also the right of the public employer to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty beca. use of ].ack of work or for other legitimate reasons, provided, however, that the exercise of such rights shall not preclude employees or their representatives from raising grievances, should decisions on the above matters have the practical consequences of violating the terms and conditions of any collective bargain- ing agreement in force, or civil or career service regulation. (b) It is also the right of the public employer, in its sole discre- tion, to determine and direct the policies, mode and methods of oper.nting its agencies, without any interference in the management and conduct of the em- ployer's operations on the part .of the employee organization or any of its representatives. The employer shall continue to have the exclusive right to take any action it deems necessary or appropriate in the management of its business and the direction of its work force. All inherent and common law management rights and functions are retained and vested exclusively in the employer. Such rights exclusively reserved to the employer shall include, but not be limited to, the following: the right to determine the qualifica- tions for and ~elect ~ts employees~ to determine the s~ze and composition of its working forces; to determine the number and type of equipment, machinery materials, products and supplies to be used; to hire, retire, promote, de.- mote, transfer, assign, lay off and recall employees; to reprimand, discharg~ or otherwise discipline employees for reasonable cause; to mainta'in efficien- cy of employees; to determine job content and the amount and types of work needed~ to determine the assignment of work; to schedule the hours and' days to be ~..:orked on each job and each shift; to discontinue, transfer, or assign all' or any part of its business operations; to make time Studies of work loads, job assignments, methods of operation and efficiency from time to time, and to ma]ce changes based on such studies; to expand, reduce, alter, combine, transfer, assign or cease any job, job classification, department operation in furtherance of public purposes; to control and regulate or dis- continue the use of supplies, machinery, equipment, vehicles and other prop- erty owned, used, possessed or leased by the employer; to make or change rules, policies and practices not in conflict with the provisions of this ordinance; to introduce new, different or improved methods, means and proces- ses of transportation, maintenance, service and operation; to make reasonabl~ rules and regulations for the purpose of efficiency, safe practices and dis- cipline; and otherwise generally to manage the business of the public employ- er, direct.the work force, and establish terms and conditions of employment, except as expressly modified or restricted by a specific 'provision of this ordinance. The employer's failure to exercise any function or right hereby reserved to it, or its exercising any function or right' in a particular way, shall not be deemed a waiver of its right to exercise such function or right, nor preclude .the employer from exercising the same in some other way not in conflict with the express provisions of this ordinance.. '1.006 -- Public~ employee~' rights; organization and representation- (1) Public employees shall have the right to form, join, and parti- cipate in, or to refrain from forming, joining, or participating in any em- ployee organization of their own choosing. (2) Public employees shall' have the right to be represented by any employ( 3 organization of their c.~n choosing, to negotiate collectively through a certified bargaining agent with their public employer in the deter- mination of the terms and conditions of their employment, and to be repre- sented in the determination of grievances arising thereunder. Public employ ees shall have the right to refrain from exercising the right to be repre- sented. This right to refrain from such activity may be exercised any time -7- Ord. No. 68-74 effective thirty (30) days from the receipt of notice by the employer. To exercise such right, an employee shall advise the public employer in writing that he does~ not wish to be represented by nor collectively bargained for by the certified bargaining agent nor to be bound by the terms of any collecti~ze bargaining agreement negotiated by such bargaining agent. A copy of such letter shall be sent to the certified bargaining agent. Upon the effective date of the written notice, the employee shall thereafter have the right to negotiate individually concerning his wages, hours and working conditions with the public employer. An individual employee may exercise this right along with other employees, subject-to the same restrictions and conditions upon the employee and the certified bargaining agent under this ordinance. It shall not be considered an unfair labor practice on-the part of the public employer .to explain to its employees their rig]~ts under this section, not- withstanding any other provision of this ordinance to the contrary. (3) Nothing in this ordinance shall be construed to prevent any public employee from presenting, at any time, his own grievances, in person or by legal counsel, to his public employer, and having such grievances adjusted without the intervention of the bargaining agent, as set out in Section 1.011, provided that the. bargaining agent has been given a reasonable opportunity to be present. (4) Public employees shall have the right to file unfair-labor practice charges alleging violations of the provisions of Section ]..016 of this 'ordinance. ~ 1.007 -- Dues; deduction and collection -- Any employee organization which has been certified as a bargaining agent may bargain to have its dues and uniform assessments deducted and collected by the employer from the salaries of those employees who authorize the deduction of such dues and uniform assessments; provided that such authorization is revocable at the employee's will upon thirty (30) days written notice to the employer and employee organization; such deduction shall be in force during the terms of the collective bargaining agreement; provided further that the authorization automatically expires after twelve (12) months; and further provided that the employee organization is required to reimburse the emp'loyer for the cost of such deductions. The public employer is expressly prohibited from any in- volvement in the collection of fines, penalties or special assessments. 1.008 -- Registration of employee organization -- (1) Every employee organization, prior to attempting to organi, ze ,or solicit employees and prior to requesting recognition by a public employer for purposes of collective bargaining, and prior to submitting a petition to the commission for purposes of requesting a representation election, shall comply with all of the requirements of this Section 1.008, including the re- quirement that it shall adopt a constitution and by-laws and shall register with the commission by filing a copy thereof, together with an annual report in a form prescribed by the commission, and an amended report whenever chang- es are made, and furnish true copies of all such reports to each employee such employee organization represents and to each employee such o. rganization seeks to organize or solicit. Such reports shall include: (a) The name and address of the organization a~d of any parent organization or organization wit]] which it is affiliated; (b) The names and addresses of the principal, officers and all re]?re- sentatives of the organization; (c) The amount of the initiation fee and of the monthly dues which members must' pay; - 8 - Ord. No. 68-74 (d) The current annual financial statement of the organization as detailed in paragraph (2) hereof; (e) The n~ne of its local agent for service of process and the address where such person can be reached; and (f) A pledge, in a form prescribed by the commission, that the em- ployee organization will conform to the laws of the City of Delray Beach, the State of Florida and the United States, and that it will accept members with- out regard to age, race, sex, religion, or national origin. (g) An affidavit signed by the principal officer of the employee organization and an' affidavit from ~the international or parent organization, if any, stating whether the organization or any officer or any agent has ever participated in a public employee str~ke. (h) Detailed statements, or references to specific provisions of documents filed under this section which contain such statements, showing the provfsion made and procedures followed with respect to each of the following: (A) qualifications for or restrictions on membership, (B) levying of assess- ments, (C) participation in insurance or other benefit plans, (D) authoriza- tion for disbursement of funds of the employee organization, (E) audit of financial transactions of the employee organization, (F) the calling of reg- ular and special meetings, (G) the selection of officers and stewards and of any representatives to other bodies composed of employee organizations' rep- resentatives, with a specific statement of the manner in which each officer was elected, appointed, or otherwise selected, (H) discipline or removal of ~offiqers or agents for breaches of their trust, (I) imposition of fines, suspensions and expulsions of members, including the grounds for such action and any'provision made for notice, hearing, judgment on the evidence, and appeal procedures, (J) authorization for bargaining demands, (K) ratification of contract terms, (L) authorization for strikes, and (M) issuance of work permits. Any change in the information required by the subsection shall be reported to the commission at the time the reporting employee organization files with t~he commission the annual financial report required hereunder. (2) Every employee organization shall file annually with the comm~_s- sion a financial report signed by its president and treasurer or correspond- ing.principal officers containing the following information in such detail as may be necessary accurately to disclose its financial condition and operation for its preceding f~scal year and furnish a true copy thereof to each employ- ee represented'by such employee organization and to each 'employee such organ- ization seeks to organize or solicit; (a) assets and liabilities .at the beginning and end of the fiscal year; (b) receipts of any kind and the sources thereof; (c) salary, allowances, and other direct or indirect disbursements (including reimbursed expenses) to each officer and also to each employee who, during such fiscal year, received more than $10,000 in the aggregate from such employee organization and any other employee organization affiliat- ed wit]] it or w~th which it is affiliated, or which is affiliated with the same national or international employee org.~nization; (d) direct and indirect lo~ns made to any officer, employee, or mem- ber, w~ich aggregated more than $250 during the fiscal y~ar, together wit]] a statement of the purpose, security, if any, and arrangements for repayment; and (o) direct and indirect loans to any business enterprise, together - 9 - Ord. No. 60-74 with a statement of the purpose, security, if any, and arrangements for re- payment; all in such categories as the commission may prescribe. ...... (3) A registration fee shall accompany the initial report filed wit~ the commission. Such money shall be used to defray the cost of registration 'and investigation of the filing party, with the remainder to be deposited in the general revenue fund. The amount charged for registration shall be set by the commission, provided however that the amount charged shall not exceed the actual cost of the registration process. (4) Every employee organization shall keep accurate accounts of its income and expenses which accounts shall be open for. inspection by any mem- ber of the organization, by anyone who the organization see]_~s to represent, by anyone who the organization represents, ~and by the commission at all reasonable times. (5) A copy of the current constitution and by-laws of the employee organization and copies of the current constitution and by-laws of any state and national groups with which the employee organization is affiliated or associated shall accompany each 'annual report. True copies of each constitu- tion and by-laws mentioned above shall be furnished to each employee the employee organization represents and to each employee the employee organiza- tion seeks to represent, organize or solicit at the time of first' contact. (6) Every business agent prior~' to attempting to organize a public employer shall register with th~ Division of General Re.qalations of the Department of Commerce in accordance with Florida Statutes, Section 447.04 and file a copy thereof with the commission. (7) Every employee organization required to submit a report under this section shall furnish the information required to be contained in such report to all of its members, to all employees it represents or solicits, and to all those employees which it seeks to represent, and every such employee organization and its officers shall be under a duty enf6rceable at the suit of the commission, or any employee represented by such organization or any emploYee such organization seeks to represent, or any member of such organi- zation, ~n any circuit court of competent jurisdiction to permit the commis- sion or such person to ex,nine any books, records, and accounts necessary to verify such report. The court in such action may, in its discretion, in addition to any judgment awarded to the plaintiff or.plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action. (8) Every officer of an employee organization and every employee of an employee organization (other than and employee p~rforming exclusively clerical or custodial services) shall file with the commission a signed report listing and describing for his preced, ing fiscal year -- (a) any stock, bond, security, or other interest, legal or equita- ble, which he or his spouse or minor child directly o~ indirectly held in, and any income or any other benefit with monetary value (including reimbursed expenses) which he or his spouse or minor child derived directly or indirect- ly from, an employer whose emplcl, ees such employee organization represents or is actively seeking to represent, except payments and other benefits received as a bona fide employee of such employer; (b) any transaction in which he or his spouse or minor child - 10 - Ord. No. 68-74 engaged, directly or indirectly, involving any stock, bond, security, or loan to or from, or other legal or equitable interest in the activities of an employer whose employees such employee organization represents or is actively seeking t¢, r'epresent; ~ (c) any stock, bond, security, or other interest, legal or equita- ble, which he or his spouse or minor child directly or indirectly held in, and any income or any other benefit with monetary value (including reimbursed expenses) which he or his spouse or minor child directly or indirectly de- rived from, any business a substantial part of which consists of buying from, selling or leasing to, or otherwise dealing with, the activities of an em- ployer whose employees such employee organization represents or is act'ively seeking to represent; (d) any stock, bond, security, or other interest, legal or equita- ble, which he or his spouse or minor child directly or indirectly held in, and any income or any other benefit with monetary value (including reimbursed expenses) which he or his spouse or minor child directly or indirectly de- rived from, an activity any part of which consists of buying from, or selling or leasing directly or indirectly to, or otherwise dealing with such employee organization; (e) any direct or indirect business transaction or arrangement be- tween him or his spouse or minor child and any employer whose employees his .organization represents or is actively seeking to represent, except work per- formed and payments and benefits received as a bona fide 'employee of such employer and except purchases ~d sales of goods or services in the regular course of business at prices generally available to any employee of such employer; and (f) any pay]nent .of money or other thing of value (including reim- bursed expenses) which he or Ills spouse or minor child received directly or indirectly from any employer or any person who acts as a labor relations consultant to an employer. (9) The provisions of paragraphs (a), (b), (c), (d), and (e) of subsection (8) shall not be construed to require any such officer or employee to report his bona fide investments in securities traded on a securities exchange registered as a national securities exchanged under the Securities Exchange Act of 1934, in shares in an invest~r~ent company registered under the Investment Company Act of 1940, or in securities of a public utility holding company registered under the Public Utility Holding Company Act of 1935, or to report any income derived therefrom. . .(10) Nothing contained in this section shall be construed to require any officer or employee of an emPloyee organization to file a report under subsection (8) (a) unless he or his spouse or minor chiid holds or has held an interest, has received income or any other benefit with monetary value or a loan, or has engaged in a transaction described therein. (11) (a) Any person 'who willfully violates th~s section shall be fined not more than $25,000 or imprisoned for not more than five years, or both. (b) Any per. son who makes a false statement or representation of a material fact, knowing it to be false, or who knowir~gly fails to disclose a - 11 - Ord. No. 68-74 material fact, in any document, report, or other information required under the provisions of this section shall be fined not more than $25,000 or im- prisoned fOr not more than five years, or both. (c) Any person who willfully makes a false entry in or willfully conceals, withholds, or destroys any books, records, reports, or statements required to be kePt by any provision of this section shall be fined not more than $25,000 or imprisoned for not more than five years, or both. (d) 'Each indivi.du~l required to sian reports under this section shall be perSonally responsible for the filing of such reports and for any statement contained therein which he knows or should know to be false. (12) Whenever it shall appear that any person has violated or is about to violate any of the provisions of this section, the commission may bring a civil action for such relief (including injunctions) as may be appro- priate. Any such action may be brought in any appropriate circuit court. (13) EVery officer, agent or representative of an employee organiza- tion which see]ts to represent employees and each person who assists such organization in organizing, negotiations and other work of the organization and the officers, agents and representatives of any organization with which' such organization is affiliated or associated, whether on a state-or national basis shall comply with the financial disclosure requirements currently in effect for the elected officials of the public employer and shall file copies of such reports with the commission. (14) An employe, e organization which is not registered as provided in this section, is prohibited from doing any of the following: (a) attempting to orga'nize or solicit the employees of a public employer, or (b) requesting recognition by ~ public employer, or (c) submitting a petition requesting a representation election, or (d) affiliating with any certified employee organization. Th.is prohibition shall be enforced by injunction upon petition of the commis- sion to the appropriate circuit court. (15) All reports required to be filed hereunder with the commission shall also be filed with the City Manager. A failure to comply with this provision shall be treated the same as a. failure to file with the commission 1.009 -- Certification of employee organization -- (1) Any employee Organization which is designated or selected by a majority of public employees in an appropriate unit as their representative for purposes of collective bargaining shall r~qUest recognition by the public empioyer. If satisfied as to the majority status of the employee organiza- tion and the appropriateness of the proposed unit, the public employer may~ recognize the employee organization as the representative of employees in the designated unit. Upon recognition by a public employer, the employee organ- ization shall inunediately petition the conunission for certifi'cation. The co~m]~ission shall review only the appropriateness of the unit proposed by the employee organization. If the Ynit is the most appropriate according to the criteria used in this ordin.ance, the commission shall imf ~diately certify the employee organization as the exclusive representative of all employees in the 'unit. Provided that in determining whether R unit is appropriate the extent - 12 - Ord. No. 68-74 t6 which the employees have organized shall not be considered. (2) If the public employer refuses to recognize the employee organ~- ization the employee organization may file a petition with the commission fo~ certification as the bargaining agent for a proposed bargaining unit. The petition shall be accompanied by dated, sworn, separate statements signed by at least thirty (30) percent of the employees in the proposed unit indicat- ing that each such employee desires to be represented by the petitioning em- ployee organization. Provided that any employee, employer or employee organ- ization having reason to believe any of the employee signatures were obtained by collusion, coercion, intimidation, misrepresentation, are over sixty (60) days old when submitted, or are otherwise invalid, shall be given a reasona- ble opportunity to verify and challenge the signatures and dates appearing on the petition. (3) (a) The commission or one of its designated agents shall inves- tigate the petition to determine its sufficiency; if it has reasonable cause to believe that the petition is sufficient, the commission shall provide for an appropriate hearing upon due notice. Such a hearing may be conducted by an agent of the commission, who shall not make any recommendations with respect thereto. If the comm'ission finds upon the record of the hearing that .the petition is sufficient, it shall immediately: 1. Define the proposed bargaining unit and determine which .public employees shall be qualified and entitled to vote at any election held by the commiss ~.on; . 2. Identify the public employer or employers for purposes of collective bargaining with the bargaining agent; 3. Order an election by secret ballot. (b) Where an employee organization is selected by a majority of the employees in the designated unit, the commission shall certify the employee organization as the exclusive collective bargaining representative of all empi0yees in the unit; (c) In any election in which none of' the choices on the ballot receives the vote of a majority of the employees in the designated unit, a run-off election shall be held according to rules promulgated by the commis- sion. A run-off election shall be conducted only where a majority of the employees in the designated unit vote in f~vor of two or more employee organ- izations. (d) No new.election may be conducted among any employees to deter- mine a representative among such employees if any such employees have had an opportunity to vote in a representation election within the preceding twelve month period. (4) In defining a proposed bargaining unit, the conm]ission shall take into c6nsideration: (a) The principles of efficient administration of govei-nment; (b) The number of employee' organization with which the employer might ~ve to negotiate; (c) The compatibility of the unit with ~he joint responsibilities the public employer and public employees to represent the public; (d) The power of the officials of government at the level of the - 13 - Ord. No. 68-74 unit to agree or make effective recommendations to other administrative authorities or legislative bodies with respect to matters of employment abou which the employee desires to negotiate; (e) The organizational structure of the public employer; (f) Community of interest among the employees to be included in the~ unit, considering: 1. The manner in which the terms of employment are determined; 2. The method by which jobs and salary classifications are deter- mined; 3. Interdependence of jobs and interchange of employees; 4. Desires of the employees; 5. The history of employee relations within the organization of th public employer concerning organization and negotiation; (g) The statutory authority of the public employer to administer a classification and pay plan; (h) Such other factors 'and policies as the commission may prescribe by regulations or by its decisions; provided that no unit shall be estab- lished or approved for purposes of collective bargaining which includes both professional and non-professional employees unless a majority of each group votes for inclusion in such unit. (i) Provided, however, that no local employee organization shall be certified pursuant to this section, unless the state, national and interna- tional organizations with which such local employee organization is in any way associated or affiliated are made parties to such certification; provided further that if the state, national, and international organizations with which the local employee Organization is in any way associated or affiliated execute an indemnity agreement with the public employer, then such joint certification shall not be required. Such agreement shall provide such state, national and international affiliated or associated organizations are joi.ntly and severally liable with the local employee organization seeking certification pursuant to this section to the public employer for all dam- ages, penalties or fines arising out of any violation of any contract betweer. the public employer and the public employee organization and any other viola tions of this ordinance by the employee organization or the employees repre- sented by 'the employee organization. 1.0091 --Decertification 'of employee organization --Upon the filin~ with the commission, by an employee, group of employees or employee o~gan'iza~ tion of a petition alleging that the bargaining authority of an incumbent employee organization should be rescinded, which is supported by authoriza- tion cards or other showing of interest on behalf of thirty (30) percent or more of t]%e employees in the bargaining unit previously certified by the commission pursuant to Section 1.009, or a petition by an employer alleging that the incumbent 'bargaining representative no longer represents a majority of the employees in the unit, then the commission or one of. its designated agents shall investigate the petition to determine ~t~ sufficiency; if it has reasonable cause to believe that the petition is sufficient, th~ commission shall provide for an appropriate he'aring upon due notice. Such a hearing ma~ be conddcted by an agent of the commission, who shall not make any reco~mnend- ation with respect thereto. If the commission finds.upon the record of the hearing that the petition is sufficient, it shall immediately take a secret ballot of the employees in such a unit and certify the results thereof to - 14,- Ord. No. 68-74 such employees, employee organizations or to the employer. 1.010 -- Collective bargaining; approval or rejection -- (1) After an employee organization has been certified pursuant to the provisions of this ordinance, the bargaining agent for the organization, .and the chief executive officer of the appropriate public employer or employ- ers jointly shall bargain collectively in the determination of the wages, hours and terms and conditions of employment of the public employees within the bargaining unit. The chief executive officer, or his representative, and the bargaining agent, or its representative, shall meet at reasonable times and bargain in Sfood faith. In conducting negotiations with the bargaining agent, the chief executive officer or his representatives shall consult with, and attempt to represent the views of the legislative body of the public em- ployer. However, the chief executive officer or his representative shall not be the agent of the legislative body and the legislative body shall not be bound by any representations cr conunitments made by such chief executive of- ficer during the course of negotiations or made at any other time. Any col- lective bargaining agreement reached by the negotiators shall ]De reduced to writing and such agreement shall be signed by the chief executive officer and the bargaining agent for the employee organization; provided, further, that if such local employee organization is affiliated or associated with a state, nationalor internationalorganization, such state, national and international organizations shall also be a party or parties signatory to such agreement and shall be responsible to the public employer for any violation of the agreemen.t or any violation of this ordinance by the certified employee .organ- ization or employees in the bargaining unit. Any agreement signed by the chief executive officer and the bargaining agent shall not be binding on the public employer until such agreement has been ratified at a regularly sched- uled or specially called meeting of the legislative body and by a vote of a majority of the employees in the unit, subject to the provisions of subsec- tions (2) and (3) of this section. (2) Upon execution of the collective bargaining, agreement, the chief executive shall, in his annual budget request or by other appropriate means, request the legislative body to appropriate such amounts as shall be surf i- · cient to fund the provisions of the collective barg'aining agreement. If less than the requested amount is appropriated, the collective bargaining agree- ment shall be administered by the chief executive officer on the basis of the amounts appropriated by the legislative body. The failure of the legislative body to appropriate funds sufficient to fund the collective bargaining agree- ment shall not constitute nor be evidence of any unfair labor practice. (3) If any provision of a collective bargaining agreement is in con- flict with any law, ordinance, rule, or regulation o.ver which the chief exec- utive officer has no amendatory power, the chief executive officer shall sub- mit to the appropriate governmental body having amendatory power.a proposed amendment to such law, ordinance, rule or r~gu].ation: Unless and until such amendment is enacted or adopted and becomes effective, the conflicting pro- visions of the collective' bargaining agreement shall not become effective. (4) If the agreement is not ratified by the public employer or is disapproved by a vote of a majority of the employees in the unit, in accord- ance wit]] procedures adopted by the commission, the agreement may be returned to the chief executive of. ficer and the employee organization for further negotiations. (5) Any collective barga~ning agreement shall contain all of the terms and conditions of employment of the emp].oyees in the bargaining unit during such term, which shall be in substitution of all benefits, terms and - 15 - Ord. No. 6R-74 conditions provided for under any merit system, personnel policies, proce- dures or manual, or in applicable merit and civil service rules and regul~- t ions. (6) Notwithstanding any other provision contained herein, neither the legislative body nor any member thereof shall discuss with any employee organization, its representatives or members any matter relating to collec- tive bargaining, nor shall the legislative body ratify or approve any agree- ment which has not been recommended by the chief executive officer, except under the circumstances set forth in Section 1.012(2)(c). Any action by the legislative body to the-contrary shall be null and void. Any member of the legislative body who violates this subsection shall not be entitled to vote on ratification of any collectiv, e bargaining agreement wit]] any' employee organization, the officers, representatives or members of which have violate~ the provisions of this subsection. (7) Any person privy to any part of the collective bargaining proc- ess in behalf of the public employer who reveals to any local, state or national employee organization or any other person not privy to the collect- ive bargaining'process in the public employer '- s behalf any information con- cerning the bargaining strategy, tactics, or goals of the public employer ~n the collective bargaining process shall not be allowed to continue his parti- cipation in the collective bargaining process in the public employer's behalf. Furthermore, such person shall be subject to removal from office, dismissal, suspension, reprimand, or other penalty as provided by law, and if such person is a member of the legfslative body, such person shall not be entitlc~ to vote on ratification of any collective bargaining agreement. Th~ purpose of this subsection is to protect the integrity of the collective bargaining process. 1.011-- Grievance procedures -- Each public employer and bargaining agent shall have a grievance procedure to be used for the settlement of dis- putes between employer and employee, or group of employees, involving the interpretation or application of a collectfve bargaining agreement. Such grievance procedure shall have as its terminal step a final and binding dis- po'sition by an impartial neutral, mutually selected b~/ the parties; provided, however, that an arbitrator or other neutral shall not have the power to add to, subtract from, modify or alter the terms of a collective bargaining agreement. If an employee organization is certified as the bargaining agent of a unit, .the grievance procedure then in existence may be the subject of discussion and any agreement which is reached shall supersede the previously existing procedure. All public employees shall have the right to a fair and equitable grievance procedure, administered without regard to membership or nonmembership in any organization. A career service employee shall have the option of utilizing the civil service appeal procedure or a grievance proce- dure established under this section, but such employee cannot use both a civil service appeal and a grievance procedure and must elect which procedur~ he desires to use, which election will be binding in all future matters. 1.012 -- Resolution of impasses -- (1) If, after a reasonable period of negotiation concerning .the terms and conditions of employment to be incorporated in a collective bar- gaining agreement, a dispute exists between a public employer and a bargain- ing agent, or if no agreement is reached within sixty (60) days after the 'commencement of collective bargaining or at 'least seventy (70) days prior to the budget submission date of the public omployer, an impasse shall bo deeme¢ to have occurred. Where an impasse occurs, the public employer, or the bar- - ].6 - Ord. No. 68-74 gaining agent or both parties acting jointly may appoint or secure the appointment of a mediator to assist in~ the resolution of the impasse. (2) If no mediator is appointed, or if the impasse is not resolvecl within sixty (60) calendar days prior to the budget submission date of the ~ public employer, the commission shall: (a) Appoint a special master and submit all unresolved issues to a special master' acceptable to both parties. .If the parties are unable to agree on the appointment of a special master, the commission shall appoint, in its discretion, a qualified special master. Provided that nothing in this section shall preclude the parties from using the services of a mediator at any time during the conduct of collective bargaining. (b) The special master or masters 'shall hold hearings in order to define the area or areas of dispute, to determine facts relating to the dispute and to render a decision on any and all unresolved contract issues. The hearings shall be held at times, dates, and places to be established by the special master or masters in accordance with rules promulgated by the commission. The special master or masters shall be empowered to administer oaths and issue subpoenas on bet~alf of the parties to the dispute or on their own behalf. Within twenty (20) calendar days after final hearings, the com- mission shall transmit the recommended decision of the special master or masters to the representatives of both parties, which decision sh~all be dis- cussed further by the parties in negotiations and shall be deemed approved by both parties unless either party, by formal action, rejects the decision within fifteen (15) calendar days of the transmission of the decision to the parties. (c) In the event that either the public employer or the employee organization does not accept in whole or in part the recommendations of Che special master or masters, (i) the chief executive officer of the public employer or the governmental unit or subdivision thereof involved shall, within ten (10) days after receipt of the findings of fact and recon%~enda- tions of the special master or masters, submit to the legislative body of the public employer or the governmental unit or subdivisio'n thereof involved a copy of the findings of fact and recommendations of the special master or masters, together with their recommendations for settling the dispute; (ii) the~ ~mployee organization may submit to such legislative body its recoma]enda- tions for 'settling the dispute; (iii) the legislative body or a duly author- ized committee thereof shall forthwith conduct a publ~c hearing at which the parties shall be required to explaln their positions with respect to the report of the fact-finding board; and (iv) thereafter, the legislative body shall take such action as it deems to be in the public interest, including the interest of the public employees involved, the interest of the taxpayers the impact on other employees, the impact upon organizational efforts by other employee organizations, 'the impact on the nature or quality of the public services provided by the employer. The public employer may, if it decides that the a6tion is in the best interest of the public, enter into a contract with another employer, private or public, to. provide public service: rather than agree to recommendations which the employ-er deems unreasonable and not in the best interests of the taxpayers and the public employees involved. 1.013 -- Factors to be considered by the special ma .ter -- The special master shall conduct the hearings and render his recommendation with the objective of achieving a prompt, peaceful and just settlement of disputes between the public employee organizations and the public employer. - 17 - Ord. No. 68-74 The factors, among others, to be given weight by the special master in arriving at a recommendation shall include: (1) Comparison of the total economic benefits of employment of the- public employees in question with the total economic benefits 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. (2) Comparison of the total economic benefits of employment of the public employees in questions with the total economic benefits of employment of public employees in other political subdivisions of similar size, condi- tion, means, location and composition of citizens within a radius of 200 miles. (3) Interest and welfare of the public. (4) Comparison of peculiarities of employment in regard to other trades or'professions, specifically: (a) Hazards of employment; (b) Physical qualifications; (c) Educational qualifications; (d) Intellectual qualifications; (e) Job training and skills; (f) Retirement plans; · (g) Sick and annual leave; and (h) Job security. (i) Availability of funds. (5) The interest of the taxpayers, the impact on the other employees of the employer, the impact upon organizational efforts by other unions, and the impact on the nature or quality of the public services provided by the employer. The public employer may if it decides that the action is in the best interest of the public, enter into a contract with another employer, private or public, to provide public services rather than agree to recommen- dations which the employer deems unreasonable and not in the best interest 0f the taxpayers and the public employees involved. 1.014 -- The compensation, if any, of the mediator, shall be borne by the party or parties requesting or securing his appointment. The compensa- tion, if any, of the special master shall be borne equally by the parties. All stenographic and other expenses will be divided equally between the par- ties. 1.015.-- Records -- Ail records which are relevant to Or ]]ave bearinc upon any issue or issues raised by the proceedings conducted by the special master may be made available to the special master by the request in writing of any of the parties to the fact-finding. The party requesting production shall bear any expense associated in ma. king such document or documents avail~ able to the special master. 1.016 --Unfair labor practices -- (1) Public employers or their agents or representatives are prohib- ited from: (a) Interfering wit]], restraining, or coercing public employees in the exercise of any rights guaranteed them under this ordinance; - 18 - Ord. No. 68-74 (b) Encouraging or discouraging membership in any employee organiza- tion by discrimination in regard to hiring, tenure, or other conditions of employment; " (c) Refusing to bargain collectively or failing to bargain collect- ively in good faith or refusing to sign a final agreement agreed upon wit]] the certified bargaining agent for the public employees in the bargaining unit; (d) Discharging or discriminating against a public employee because he has filed charges or given testimony under this ordinance; ~e) Dominating, interfering with, or assisting in the formation, existence, or administration of any employee organization, or contributing financial support to such an organization; provided however, that such con- duct shall not be deemed to include public employer acts of cooperation, courtesy, kindness, or generosity designed to create an atmosphere of good will or evincing a desire to maintain amicable relations with such labor organization including the parti, cipation with such labor organization in committees for purposes such .as those of a social, civil, athletic, or musi- cal nature. It shall not be an unfair labor practice for a public employer to furnish public facilities and allow such committees to meet during workin¢ time. (f) Refusing to discuss grievances in good faith, pursuant to the terms of the collective bargaining agreement with either the certified bar- gaining agent or the public employee or employees involved. (2) A public employee organization or anyone acting in its behalf, its officers, representat'ives, agents or members are prohibited from: (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this ordinance; or from interfering with, restraining or coercing managerial or supervisory employees by reason of their performance of job duties or other activities undertaken ih the interests of the public employer. (b) Causing or attempting to cause a public employer to discriminate against an' employee because of the employee's membership or nonmembership in an employee organization or to attempt to cause the public employer to vio- late any of the provisions of this' ordinance; (c) Refusing to bargain collectively or failing to bargain collect- ively in good faith with a public employer; (d) Discriminating against an employee because'he has signed or filed an affidavit, charge, or petition, or given any information or testi- mony in any proceed'ings provided for in this ordinance; (e) Participating in a strike against the public employer by insti- gat~.g or supporting, in any positive manner, a strike. Any violation of this section shall subject the violator to the penalties provided in this ordinance. (f) Instigating or advocating support, in a~y positive manner, for an employee organization's activities from high school or grade school stu- dents, or institutions of higher learning. 19 Ord. No. 62-7~ (3) Notwithstanding the provisions of subsections (1) and (2), the parties' rights of free speech shall not be infringed upon and the expression of any argument or opinions shall not constitute or be evidence of an unfair employment practice or of any other violation of this ordinance, if such expression contains no promise of benefits, nor threat of reprisal or force. 1.017 -- Charges of unfair labor practices -- Violations of the provisions of Section 1.016, shall be remedied by the commission in the following manner: (1) Whenever it is charged by an employer, an employee organization or an employee that any person has engaged in or is engaging in any unfair labor practice, the commission, or any agent designated by the commission for such purpose, shall conduct a preliminary investigation to determine if there is substantial evidence indicating a prima facie violation of the applicable unfair labor practice provision. (2) If, upon a preliminary investigation, it is determined that there is not substantial evidence indicating a prima facie violation of the applicable unfair labor practice provision, the designated agent of the commission shall dismiss the charge. (3) A charging party whose charge is thus dismissed, may~ appeal to the chairman and one other member of the commission, and if they find sub- stantial evidence of a meritorious charge, that charge shall be reinstated and served pursuant to the procedures of paragraph (a) of this section. (a) If the commission or its agent determines that there is substan- tial evidence indicating a prima facie violation the con~]]ission or such agent shall issue and cause to be served upon the person, a copy of the charges and a notice of hearing before the commission or a member thereof, or before a designated agent, at a place therein fixed, to be held not less than ten '(10) days after service of a copy of the charges by the commission. Any charge may be amended by the charging party, at any time prior to the issuance of an order based thereon, provided that the charged party is not unfairly preju- diced thereby. The person upon whom the charge is served may file an answer to the charge. The charging party and the respond&nt shall have the right to appear in person or otherwise and give testimony at the place and time fixed in the notice of hearing. In the discretion of the member or agent conduct- ing the hearing, or the commission, any other person may be allowed to inter- vene in the proceeding and to present testimony. In .any hearing the commisL sion shall not be bound by the judicial rules of evidence. (b) Whenever a charging party alleges that a person has engaged in unfair labor practices and that he will suffer substantial and'irreparable injury if he is not granted temporary relief, the commission may petition the circuit court for appropriate injunctive relief, pending the final adjudica- tion by the commission with respect to such. matter. Upon the filing of any such petition,-pursuant to Chapter 74-100, Laws of Florida, the court shall cause notice thereof to be served upon 'the parties, and thereupon shall have jurisdiction to grant such temporary relief or restraining order as it deems just and proper. (4) The testimony takep, by the member, agent, or the conm%ission shall be reduced to writing and filed with the commission. Thereafter the commission, upon notice, may take further testimony or hear argument. (a) If, upon consideration of all ovidence taken, the commission finds substantial evidence that an unfair labor practice has been committed, - 20 - Ord. No. 6~-74 then it shall state its findings of fact and shall issue and cause to be served an order requiring the respondent party to cease and desist from the unfair labor practice, and to take such positive action, including reinstate- ment' of employees with or without back pay, as will effectuate the policies of this ordinance. The order may further require the person to make reports· from time to time showing the extent to which he has complied with the order. (b) If, upon consideration of the evidence taken, the commission finds that the person or entity named in the charge bas not engaged in and is not engaging in the unfair labor practice, the commission shall state its findings of fact and shall issue an order dismissing the charge. (c) No notice of hearing shall be issued based upon any unfair labor practice 'occurring more than six (6) months prior to the filing of t]~e charge with the commission, unless the person aggr'ieved thereby was prevented from filing the charge by reason of service in the armed forces, in which event, the six (6) month period shall be computed from the day of his discharge. (d) No order of the commission shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, "if the individual was suspended or discharged for cause. (e) The commission shall have exclusive jurisdiction witch respect to all matters which arguably may constitute an unfair labor practice. When a charge is filed with 'the comm.ission alleging that an unfair labor practice has occurred, the commission sha±l hear and determine such dispute a]]d its determination shall be final and binding with respect to the entire dispute subject to the appeal procedures set forth herein. Provided, however, that the jurisdiction of the commission shall not be exclusive with respect to Section 1.016 (2)(b) hereof and the remedies provided in Sections 1.018, 1.019 and 1.020 hereof. (5) Chapter 74-100, Laws of Florida empowers the district courts of appeal upon the filing of an appropriate petition, to review final orders of the commission. Until the record in a case has been filed in the appropriate district court of appeal, the commission at any ti~e, upon reasonable notice and in such manner as it deems proper, may modify or set aside, in whole or in part, any findings or order made or issued by it. (6) (a) The commission may petition for enforcement of the order and for appropriate injunctive relief; and shall file the record of the proceed- ings before the commission in the district court of appeal. ' (b) Upon the filing of the petition, the appropriate district court of appeal pursuant to Chapter 74-100, Laws of Florida, shall cause notice thereof to be served upon the respondent, and thereupon shall have jurisdic- tion of the proceeding and shall grant such'.temporary or permanent' relief or restraining order ~s it deems, just-and proper, enforcing, modifying, or set- ting aside in whole or in part the order of the commission. Pursuant to Chapter 74-100, Laws of FloriSa, no objection that h~ not been urged before the commission, its members or agent, shall be considered by the district court of appeal, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the commis- sion, with respect to questions of fact, if supported by substantial evidenc~ on the record considered as a whole, shall be conclu'sive. (c) If either party applies to the court for. leave to present addi- - 21 - Ord. No. 68-74 tional evidence and shows to the satisfaction of the court that the addition-'-i al evidence is material and that there were reasonable grounds for the fail--. ure to present it in the hearing before the commission, its members or agent, pursuant to Chapter 74-100, Laws of Florida, the court may order the addi- . tional evidence to be taken before the commission, its memb~'~£s or agent, and~ to be made a part of the record. The commission may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file the modifying or new findings, which f~ndings, with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive, and shall file its recom- mendations, if any, for-the modification or setting aside of its original order. (d) Upon the filing of the record, pursuant to Chapter 74-100, Laws of Florida, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review in accordance with the rules of appellate procedure. An appropriate district court of appeal may enforce its rulings by contempt proceedings, if necessary, (7) A~y person aggrieved by a final order of the commission granting or denying in whole or in part the relief sought, pursuant to Chapter 74-100, Laws of Florida, may obtain a review of such order by filing in the appro- priate district court of appeal a petitio, n praying that the order of the commission be modified or set aside. A copy of the petition shall be filed with the Commission. Thereupon, the aggrieved part shall file in the court the record in the proceeding certified by the Commission. Upon the filing of the petition, the court shall proceed in the same manner as under subsection (5) and shall grant to the commission such temporary relief or restra~_ning order as it deems just-and proper, enforcing, modifying or setting aside, in whole or in part, the order of the commission. The findings of the comn~is- sion with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. (8) The commencement of proceedingk under subsection (5) or (6) shall not, unless specifically ordered by the district court of appeal, oper-- at& as a stay of the commission's order. (9) Pursuant to Chapter 74-100, Laws of Florida, petitions filed under this ordinance shall be heard expeditiously by the district court of appeal to w. hich presented, and shall take precedence over all other civil matters except prior matters of the same 'character. 1.018 -- Strikes prohibited-- No public employee or employee organ- ization may participate in a strike against a public employer by instigating or supporting, in any manner, a strike. Any violation of this section shall subject the violator to the penalties provided for herein and under state 1 aw. 1.019 --Violation of strike prohibition; penalties -- (1) Circuit courts h~.ving jurisdiction of the parties are vested with the authority to hear and determine all actions alleging violations of this ordinance and/or of Section 447.018, Florida Statutes. Suits to enjoin violations of th'is ordinance~d/or of Section 447.018, Florida Statutes, will have priority over all matters on the court's docket except other 'emergency matters. (2) (a) If a public employee, a group of employees, ~n emp].oyee organization, or any officer, agent, or representative of any employeo organ- ization, engages in a strike in violation of this ordinance and/or of Section - 22 - Ord. No. 6~-74 447.018, Florida Statutes, the commission or any public employer whose em- ployees are involved or whose employees may be affected by the strike, or any individual who may be affected by the strike, may file suit to enjoin the strike in the circuit court having proper jurisdiction and proper venue of such actions under the Florida Rules of Civil Procedure and the Florida j Statutes. The circuit court shall conduct a hearing, which may be ex parte, with notic~ sent to all interested parties where possibl~ at the earliest practicable time. If the plaintiff makes a prima facie showing that a vio- lation of this ordinance and/or of Section 447.018, Florida Statutes is in progress or that there is a present danger that such a strike is about to commence, the circuit co. urt shall issue a temporary injunction enjoining the strike. The plaintiff may also petition for, and the court may grant, other appropriate temporary relief or restraining order. Upon final hearing, the circuit court shall either make the injunction permanent or dissolve it. (b) The occurrence of a strike and the participation therein by an employee do not affect the rights given to the employer to deal with the strike, including: 1. Tt~e right to impose discipline, including discharge, or suspen- sion without pay, of any employee participating therein; 2. The right to cancel the reinstatement eligibility of any employee engaging therein; and "3. The right of the employer to request the imposition of fines, either mgainst the employee organization or the employee engaging therein, or to sue for damages because of such strike activity. (~) If an injunction issued pursuant to this section to enjoin a strike is not promptly complied with, on the application of the plaintiff or any affected party, the circuit court shall immediately initiate contempt proceedings against those who appear to be in violation. An employee organ- ization or employee found by the preponderance of the evidence to be in con- tempt of court for violating an injunction against a strike shall be fined an. amount deemed appropriate by the court. In determining the appropriate fine, the court shall objectively consider the ext~nt of lost services and the particular nature and position of the employee group in violation. The fine shall not exceed five thousand dollars ($5,000), unless the court, after considering, the partic, ular nature and position of the public employee organ- ization involved, and the nature of the strike and damage' and inconvenience caused the public, finds that a larger fine is appropriate. Each officer, agent, representative of an employee organization or anyone acting in its behalf found to be in contempt of court for violating an injunction against a strike, shall be fined not less than fifty dollars ($50.00) nor more than one 'hundred ($100.00) dollars for each calendar day that the violation is in progress unless the court finds under the standards set forth above, that a larger fine is appropriate. (4) An employee .organization and an international or parent organi- zation with which it is affil~.ated shall be liable-for any damages which might be suffered by a public employer as a result of a violation of this ordinance and/or the provisions of Section 447.018, Florida Statutes, by the employee organization or its reL~'esentatives, officers and agents or the employees represented by the employee organization. The circuit court hav- ing jurisdiction over such actions is empov;ered to enforce judgments against employee organizations, as defined in this ordinance, by attachment or garn- ishme~%t of union initiation fees or dues w]lich are to be deducted or checked - 23 - Ord. No. 68-74 of'f by public employers. The trier of fact may take into consideration any 'damages that might have been recovered by the public emplo~zcr under subsec- tion 6(a)4 of this Section. (5) If the con~]]ission after a hearing on notice conducted according to rules promulgated by the commission determines an employee has violated the provisions of this ordinance and/o'.~ Section 447.018, Florida Statutes, i shall order the termination of his emploln~]ent by the public employer. Not- withstanding any other provision of law, a person knowingly violatin.~ the provisions of such sections m~ny, subsequent to such violation be appointed ol reappointed, employed or reemployed, as a public employee, but only upon the following condi, tions: (a) Such person shall be on probation for a period of one (1) y~a_ following his appointment or reat~pointment, emplo~a]¥~nt or reemployment, during which period he shall serve without tenure; (b) His compensation ]nay in no event exceed that received by him irmnediately pL~ior to the time of the violation; (c) The compensation of the person may not be increaBed until after the expirhtion of two (2) years from such .appointment or reappointment, em- p!oyment or reemployment. (6) (a) If the commission determines an employee organization has violated the provisions of this ordinance and/or Section 447.018,. Florida Statutes, it may: · 1. Issue cease and desist orders as necessary to insure compliance with its order. 2. Suspend or revoke the certification of the employee organizatio]" as. the bargaining agent of such employee unit. 3. Revoke the privilege of check-off of dues deduction and collec- tion previously granted to the employee organization. 4. Fine the organization and any state, national, international or parent organization with which it is affiliated up to twenty thousand dollars ($20,000) for each calendar day of such violation 6r determine the approxi- mate cost to the public due to each calendar day of the strike and fine the organization an amount equal to such cost, notwithstanding the fact that the fine may exceed twenty thousand dollars ($20,000) for each such calendar day The fines so collected shall immediately accrue to the public employer and· shall be used by it to replace those services denied the public as a result of the strike. In determining the amount of damages, if any, to be awarded to the public employer, the commission shall take into consideration any action or inaction by the public employer or its agents that provoked or ten~ed to provoke the strike by the public employees. (b) An organization determined to 'be in vi. olation of the provisions of this ordinance and/or Sect.ion 44.7.018, Florida Statutes, and any state, national, international affiliate or Subordinate local in any way associated with such Organization shall not ]De certified until one (1) year from the date of final payment of any fine against it. (7) Pursuant to Chaptez 74-100, Laws of Florida, orders of the commission pursuant to this section are reviewable in the district court of appeal and may be enforced by such court. 1.020 -- Other unlawful acts -- - 24 - Ord. No. 68-74 (1) Employee organizations, their members, agents, representatives, ~or any person acting on their behalf are hereby prohibited from: (a) Soliciting public employees during working hours of any employee who is involved in the solicitation, (b) Distributing literature during working hours in areas where th%..- actual work of public employees is performed, such as offices, warehouses, schools, police stations, fire stations and any similar public installations This section shall not be construed to prohibit the distribution of litera- ture during the employee's lunch hour or in such areas not specifically devoted to the performance of the employee's official duties. (c) Instignting or advocating support, in any positive manner, for an employee organization's activities from high school or grade school students during classroom time. kd) Omitting to perform or performing any act the results of which are detrimental to the best interests of that segment of the public on whose behalf the employer has a duty to serve. (2) No employee organization shall directly or indirectly pay any fines or penalties assessed against individuals pursuant to any of the pro- visions of this ordinance. (3) The con,mission and the circuit courts of this state shall have jurisdiction to enforce the prov. isions of this section by injunction and contempt proceedings, if necessary. A public employee who is convicted of a violation of any provision of this section may be discharged or otherwise disciplined by his public employer, no~withstanding further provisions of law, and notwithstanding the provisions of any collective bargaining agree-. ment. ~ 1.021 -- Merit or civil service system; applicability -- (~) The provisions of this ordinance shall not be construed to repeal, amend, or modify .the provisions of any law or ordinance establishing a merit or civil service system for public employees or the rules and regu- lations adopted pursuant thereto; or to prohibit or hinder the establishment of other such personnel systems unless the provisions of such merit or civil service system laws, ordinances or rules and regulations adopted pursuant thereto are in conflict with the provisions of this ordinance in which event such laws, ordinances, or rules and regulations sh'all not apply, except as provided in §1.006(3) . (b) Where an employee organization is designated as bargaining agen! by a unit of employees which is determined to be appropriate by the commis- sion, then such unit of employees.shall be entitled to the benefits of col- lective bargaining and shall enjoy the wages, hours and working conditions and other terms of employment negotiated between the bargaining agent~ and th~ public employer upon ratification of such collective bargaining agreement by the 'employees in the unit; provided further that upon ratification of any .such collective bargaining agreement by a vote of a majority of the employees in the unit, any merit system, personnel manual and any merit or civil serv- ice system shall henceforth be deemed inapplicable to such unit employees. 1.022 -- Existing agreements -- All public employee agreements now ir existence shall remain in effect for ninety (90) day~ and continue there- after for their term so long as the public employee organization complies with all the requirements of th:s ordinance within such ninety (90) day period. Should the employee organization fail to comply with all of the requirements of this ordinance, then such agreement ,shall be deemed to bo void, unless the public employer petitions the commiss~.on to permit the - 25 - Ord. No. 6R-74 agreement to remain in effect. 1.023 -- Government in the sunshine -- The provisions of §447.023, Florida Statutes are adopted as a part of this ordinance. 1.024 -- Severability --.It is declared to be the legislative intent that the provisions of this ordinance are severable. If any section, sub- section, sentence, clause or provision is found to be unconstitutional or invalid for any reason, the same shall not affect the remaining provisions of this ordinance. 1.025 -- Review of commission rules -- The legislative body of the public employer shall retain th~ right to approve, amend or rescind all rule~ promulgated by the commission pursuant to this ordinance. In the absence of~ legislative action to the contrary, all rules shall have full force and effect upon their approval by the commission. 1.026 -- Conflicting ordinances and resol'utions repealed -- Ali. ordinances and resolutions or parts of ordinances or resol'utions in conflict herewith are hereby repealed to the extent of such conflict. 1.027 -- Effective date -- This ordinance shall take effect upon sub- mission by the City of Delray Beach of an application for review and approval of this ordinance to the Florida Public Employees Relations Commission, or February i0, 1975, whichever is later. This ordinance shall remain in effect pending' approval by the Florida Public Employees Relations Commission~and during any review of the validity of this ordinance or any part hereof by the commission and the courts and pending a final decision by the appropriate court of ultimate jurisdiction. Any amendment hereto shall take effect upon submission by the City of Delray Beach of an application for review and approval of such amendments to the Florida Public Employees Relations Commi$ sion, or the effective date of the amendment, whichever is later. Such amendments shall be effective pending approval by the Florida Public Employ- ees Relations Commission and during any review of the validity of such amend- ments or any part thereof by the commission and the courts and pending a final decision by the appropriate court of ultimate jurisdiction. PASSED AND ADOPTED in regular session on second and final reading on this the 13th day of January , 1975. ATTEST: . .. C ity~>C~ erk First Read{ng. December 23, 1974 Second Reading~ January ~,3, 1975 Legal in form Ci~y Attorney