Full text of charges AFSCME filed against DJJ and DMS with the Public Employees Relations Commission

As basis for this Charge, AFSCME alleges the following:

1. The State of Florida and AFSCME are parties to a collective bargaining agreement and share a 25- year bargaining history. (Exhibit A)

2. Although the current collective bargaining agreement expired on June 30, 2001, the parties have continued to bargain, and have agreed that the 1998-2001 collective bargaining agreement is the status quo.

3. The status quo collective bargaining agreement contains provisions relating to state employee lay-offs or reductions in force, and privatization or outsourcing.

4. The status quo collective bargaining agreement contains provisions relating to state employee appeal rights.

5. On November 26, 2001, the Department of Juvenile Justice (hereinafter DJJ) issued a notice to adversely affected employees represented by AFSCME that it intended to privatize/outsource certain positions. (Exhibit B - a true and correct copy of an actual lay off letter and the sample of the letter sent to adversely affected employees as provided by DJJ Chief of Personnel Paula Guidry.)

6. The notices issued on November 26, 2001 announced DJJ's intention to execute the reduction in force in a manner inconsistent with the AFSCME - State of Florida Master Contract.

7. The notices issued on November 26, 2001 did not cite the Department's statutory authority to execute the reduction in force.

8. The notices issued on November 26, 2001 did not cite the Department's reduction in force authority, process, or procedure pursuant to any duly promulgated Rule of the Florida Administrative Code.

9. The notices issued on November 26, 2001 did not provide adversely affected employees with proper notice or a right to appeal the Department's decision to terminate theiremployment.

10. On December 7, 2001, DJJ issued a notice to adversely affected employees
represented by AFSCME that their positions would be eliminated effective January 4, 2002. (Exhibit C - a true and correct copy of an actual lay off letter and the sample of the letter sent to adversely affected employees as provided by DJJ Chief of Personnel Paula Guidry.)

11. The notices issued on December 7, 2001 did not cite the Department's statutory authority to affect the reduction in force.

12. The notices issued on December 7, 2001 did not cite the Department's reduction in force authority, process, or procedure pursuant to any duly promulgated Rule of the Florida Administrative Code.

13. The notices issued on December 7, 2001 affected a reduction in force in a manner inconsistent with AFSCME - State of Florida Master Contract.

14. The notices issued on December 7, 2001 did not provide adversely affected employees with proper notice or a right to appeal the Department's decision to terminate their employment.

15. On December 7, 2001 the undersigned attorney and AFSCME members in the DJJ, including Michael Gibbons, Beverly Eller, Yolanda Harris, and Jimmy Richardson met with the Department's management representatives including Chief of Personnel Paula Guidry , Assistant Secretary Steven Casey, and Department of Management Services designee, Attorney Cindy Horne. At this meeting, the issue of the process and procedure utilized by the Department of Juvenile Justice to lay off career service employees was raised. The Department of Juvenile Justice and the Department of Management Services indicated that they were complying with the law, and declined to discuss the issue further with AFSCME until receiving a request for Consultation pursuant to the AFSCME - State of Florida Master Contract.

16. On December 10, 2001, DJJ provided AFSCME with official notice of the impending reduction in force. (Exhibit D - a true and correct copy of the document.)

17. On December 11, 2001 AFSCME submitted a request for consultation and information regarding the lay off process and procedure to the Department of Juvenile Justice and facsimile copy to the Department of Management Services, pursuant to the AFSCME Contract. (Exhibit E - a true and correct copy of the document.)

18. DJJ provided AFSCME with a partial response to the information request in correspondence dated December 20 and 24, 2001. (Exhibits F and G - a true and correct copy of the correspondence)

19. In the December 20, 2001 correspondence, DJJ indicates it did not utilize the provisions of
the lay off rule, Rule 60K-17, F.A.C. as required by the AFSCME collective bargaining agreement. This correspondence further indicates that the Department has no internal policy to affect the lay offs, and that unilaterally changed the lay off process and procedure by it relying instead upon the "DMS Managing Change Layoff Guide." (See Exhibit H - a true and correct copy of the document.)

20. In its December 24, 2001 correspondence, DJJ indicates that it selected tenured career service employees for layoff "utilizing the Department of Management Services comparative merit checklist" to score each employee within each of the circuits by which the Department is organized. (Exhibit I - a true and correct copy of the score sheet as provided by Paula Guidry, DJJ Chief of Personnel) This checklist is a substantial departure from the process collectively bargained by AFSCME and requires consideration of impermissible factors such as race, sex, and disability that are are also in conflict with the AFSCME collective bargaining agreement.

21. DJJ offered to meet with AFSCME on January 3, 2002, just one day before the
January 4, 2002 lay offs were scheduled to go into effect, and 3 days after the December 31, 2001 lay offs went into effect.

22. On January 3, 2002 AFSCME President Jeanette Wynn, the undersigned attorney, and DJJ AFSCME members Michael Gibbons, Yolanda Harris, Beverly Eller, and Jimmy Richardson met in Consultation with DJJ representatives who had the authority to speak for the Department including: DJJ Deputy Secretary Frank Alarcon, Chief of Personnel Paula Guidry, DJJ Attorney Richard Davison, and other DJJ officials who were present at the request of the Deputy Secretary. Also present was DMS Attorney Cindy Horne who had the authority to represent and speak on behalf of the DMS.

23. The DMS assigned one of its staff, Ms. Lenore Penny to take minutes of the meeting. (Attachment J - a true and correct copy of the document) As these minutes indicate, Ms. Horne clarified the purpose of the meeting as consultation, and stated that she did not believe impact bargaining was available under Article 8 (Workforce Reduction) of the AFSCME contract. (e.g. page 2 of Minutes)

24. AFSCME stated that the meeting was an information gathering consultation to determine the extent to which impact bargaining would be appropriate.(e.g. page 2 of Minutes) At the end of the meeting, AFSCME demanded to bargain over the issue. As the meeting minutes indicate, in response to this statement, Attorney Horne then " gave Ms. Neimeiser a letter declaring impasse regarding this issue." (Exhibit K - a true and correct copy of the document, e.g. page 10 and 11)

25. On January 9, 2002, without a single day of bargaining, DMS Chief Negotiator, Michael Mattimore advised the Florida legislative impasse committee that the parties were at impasse over the DJJ layoffs. (Exhibit L - a true and correct copy of the document.)

26. On January 2, 2002, AFSCME filed a motion for temporary injunction with the 2nd Judicial Circuit Court. The case was heard before Judge Nikki Clark on January 17, 2002. Judge Clark indicated that she believed the adversely affected employees should have been given a hearing to appeal their layoff. In addition, Judge Clark found that the proper venue for the Union's complaint was before the Public Employees Relations Commission. AFSCME filed a Notice of Voluntary Dismissal on January 25, 2002. (See 2nd Circuit Court Affidavits)

27. On March 6, 2002, AFSCME sent a letter of demand to bargain to DJJ Secretary Bankhead and DMS Secretary Cynthia Henderson. The demand has gone unanswered. (Exhibit M - a true and correct copy of the document.) Instead, the DMS and DJJ have unilaterally implemented a change in the lay-off policy and procedure by adopting a new lay off methodology as described in the DMS "Managing Change Guide" and now, F.A.C. Rule 60L-33 which became effective 1/1/02.

28. The DMS "Managing Change Guide" establishes a "uniform course of action for state managers when a workforce reduction is necessary." It requires each agency to adopt a "Workforce Transition Plan" in the event of workforce reductions resulting from, "budget changes in authorized filled or vacant positions, program reductions resulting from outsourcing or privatization efforts, program phase-outs, elimination of grants, or other actions."

29. The DMS "Managing Change Guide" provides sample lay off notices to be utilized by state agencies in executing workforce reductions.

30. The DMS "Managing Change Guide" does not provide for proper notice to career
service employees affected by a reduction in force.

31. The DMS "Managing Change Guide" does not provide an appeal process to careerservice employees affected by a reduction in force.

32. The DMS "Managing Change Guide" denies career service employees their bargained rights by advising those who would ask, "What are my appeal or grievance rights?" as follows:

If you are an employee who is covered by a collective bargaining agreement, you may have the option to grieve under any applicable grievance procedure prescribed within that agreement. (emphasis added)

33. The DMS requirement that each agency adopt a different plan is inconsistent with bargaining for a statewide unit.

34. DJJ employees and AFSCME have a statutory right to submit a dispute through the grievance procedure up to and including arbitration. The Department's failure to recognize the grievance procedure that has been collectively bargained is a violation of Chapter 447, F.S.

35. Pursuant to the AFSCME Contract, long-standing practice between the parties, and legal precedent of both the U.S. and Florida Supreme Court, the state must provide tenured career service employees with due process before terminating their employment.

36. AFSCME Council 79, as the certified collective bargaining agent of affected State
employees, and Department of Management Services have been negotiating changes to the AFSCME Master contract since October 2001.

37. On October 17, 2001, AFSCME demanded to bargain the wholesale revision of the Career Service Rules (Exhibit O - a true and correct copy of the document), including the proposed rule regarding lay offs (proposed Rule 60L-33 F.A.C. -Exhibit P - a true and correct copy of the document.). Bargaining over the Rules began on December 21, 2001. The parties have not come to an agreement.

38. The DJJ December 31, 2001 and January 4, 2002 layoffs were not affected pursuant to a valid, duly promulgated, or bargained rule replacing 60K-17 with regard to layoffs. (Exhibit Q - a true and correct copy of the document)

39. AFSCME has objected to the process and procedure under which employees are subjected to lay off. This unilateral implementation of the lay off process and procedure by DMS and DJJ radically alters the terms and conditions of employment for its members and the career service employees to which it owes a duty of representation. AFSCME's affected members are tenured career service employees, whose competence and on the job performance has been rated as satisfactory by the employer. Yet, these employees were terminated from employment without a bargained for and legally required due process hearing solely on the basis of the outcome of a non-negotiated policy.

40. The refusal of the DMS and DJJ to acknowledge and comply with the AFSCME - State Master Contract, and Chapter 447, F.S. impairs and prevents AFSCME from effectively carrying out its duty under the Public Employees Relations Act to represent those persons.

I have read the charge. The statements contained therein are true to the best of my knowldege and belief. A copy of this fully executed form has been mailed or delieved to the representatives of the employer and any other party.

Signature of Charging Prty Representative

Alma Gonzalez-Neimeiser - Florida Bar Number 0781592
Florida Council 79 - AFSCME
111 North Gadsden Street, Suite 100
Tallahassee, Florida 32301
(850)222-0842; (850)224-2961 (fax)

Sworn to and subscribed before me this ____ day of
April, 2002.
_______________________________________
Notary Public My Commission expires: ____________________

CERTIFICATE OF SERVICE
I hereby certify that an accurate copy of the foregoing has been provided by facsimile transmission and U.S. Mail this ____day of April, 2002, to the following:

Robert Sechen, General Counsel
Florida Department of Juvenile Justice
2737 Centerview Drive
Tallahassee, Florida 32399-3100

Paula Guidry, Chief of Personnel
Florida Department of Juvenile Justice
2737 Centerview Drive
Tallahassee, Florida 32399-3100

Monesia T. Brown, Acting General Counsel
Florida Department of Management Services
4050 Esplanade Way, Suite 260
Tallahassee, Florida 32399-0950