A Florida Public Employer’s Decision to Subcontract Is a Statutory Management Right

The issue in Florida was whether a public employer had to talk to a union before deciding to hire another company to do the work of union employees. The Florida Public Employees Relations Commission decided that the employer did not have to ask the union before making this decision. In the case of the Amalgamated Transit Union, Local 1593 v. Hillsborough Area Regional Transit Authority, the union and the employer disagreed on this point and ended up in a legal fight. The commission ultimately ruled that the employer did not have to talk to the union before subcontracting the work. The commission made a decision that public employers can subcontract work without bargaining with their employees. They based their decision on an approach taken in New Jersey. In Florida, if a decision to subcontract affects employment and also affects how a business functions, then the employer doesn’t have to bargain with their employees. This means the employer can make the decision to subcontract without talking to their employees first. In the HARTA case, the commission decided that public employers can decide to subcontract work without having to negotiate with the employees’ union. They said that this decision is a political one and should be made by elected officials, not in a bargaining session. They also said that it would be too hard to review each subcontracting decision individually. However, they did say that the employer has to tell the union about the plan to subcontract, so the union has a chance to ask for negotiations about how it will affect the employees. Commissioner Gertz disagreed with the majority’s decision on subcontracting, and suggested that the union should have a say in the decision if it’s made for cost savings. She also said that if the decision changes the scope of the employer’s business, then the union wouldn’t have a say. She believes that this approach would lead to better decisions for everyone. She also thinks that it wouldn’t be too difficult for a judge to review these decisions later on. In other public sector jurisdictions, the tests for determining if a decision to subcontract is a mandatory subject of bargaining vary. They look at how the decision affects the employment relationship and whether the employer subcontracted to change policy or mandatory bargaining subjects. Many public sector jurisdictions limit the employer’s ability to make operational changes without bargaining, as seen in decisions in Michigan, Washington, and Wisconsin. In two court cases, it was decided that when a public employer makes a decision to subcontract work or change its operations, it must negotiate with the employees’ union. Even if the employer’s decision is not based on saving money, it still has to talk to the union about the changes. The court said that the employer can’t make big changes to how it does things without talking to the employees. It’s kind of like how a business can’t close part of its operations without talking to its employees first. In the case Unified School District No. 1 of Racine County v. Wisconsin Employment Relations Commission, the Wisconsin Supreme Court rejected the requirements for “change in services” or “essential services” in the public sector. They said that public employers may not have the option of shutting down or moving, so the degree of operational change should not determine if subcontracting is negotiable. They also said that subcontracting decisions may involve social or political goals that should be decided through the political process, not through collective bargaining. The Wisconsin Supreme Court held that the decision to subcontract food services was related to wages and employment conditions, so it had to be negotiated with the workers’ union. Similar decisions in Michigan and Washington have also favored unions. In Wisconsin, decisions to subcontract are typically required to be negotiated unless the employer is going out of business. This means that public employers usually have to bargain with unions before subcontracting work. HARTA allows public employers to hire another company to do some of their work as long as it doesn’t lead to the employer shutting down. This lets the employer find better and cheaper ways of doing things, whether it’s by hiring another company or by coming up with new ideas during contract negotiations. The subcontracting and privatization decisions made by public employers and employee unions may face legal challenges related to union animus, successor employers, and civil service laws. These issues can be complicated and may involve varying laws and regulations, making it important for parties involved to seek legal advice. Courts in different states have reached different conclusions on these issues, so it’s important to stay informed about the specific laws in your area. Ultimately, these decisions can have a big impact on how government services are provided, and it’s important for elected officials to consider the interests of the public and public employees when making these decisions. Nina Q. Smith is a lawyer at a firm in Miami that helps employers with labor and employment issues. This column is written on behalf of a group of lawyers who focus on labor and employment law. Their goal is to promote duty and service to the public, improve how justice is carried out, and advance the study of law.

Source: https://www.floridabar.org/the-florida-bar-journal/a-florida-public-employers-decision-to-subcontract-is-a-statutory-management-right/