BOARD OF CTY. COM'RS v. CITRUS, CAN. FOOD

• Decision Date: 20 November 1998
• Docket Number: No. 97-05027.,97-05027.
• Citation: 738 So.2d 953
• Parties: BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Appellant, v. CITRUS, CANNERY FOOD PROCESSING & ALLIED WORKERS, DRIERS, WAREHOUSEMEN & HELPERS, LOCAL UNION 173 and Florida Public Employees Relations Commission, Appellees.
• Court: Florida District Court of Appeals

738 So.2d 953

BOARD OF COUNTY COMMISSIONERS OF SARASOTA COUNTY, Appellant, v. CITRUS, CANNERY FOOD PROCESSING & ALLIED WORKERS, DRIERS, WAREHOUSEMEN & HELPERS, LOCAL UNION 173 and Florida Public Employees Relations Commission, Appellees.

No. 97-05027.

District Court of Appeal of Florida, Second District.

November 20, 1998.

Jorge L. Fernandez, County Attorney, and William M. Rossi, Assistant County Attorney, Sarasota, for Appellant.

Sharon Burrows, Assistant County Attorney, Palm Beach County Attorney's Office, West Palm Beach, for The Florida Association of Counties and The Florida Association of County Attorneys, Amici Curiae.

Stanley E. Marable, Sarasota, for Appellee Citrus, Cannery Food Processing & Allied Workers, Drivers, Warehousemen & Helpers, Local Union 173.

Joey D. Rix, Public Employees Relations Commission, Tallahassee, for Appellee Florida Public Relations Commission.

CASANUEVA, J.

The Board of County Commissioners of Sarasota County ("Board") appeals a final order entered by the Public Employees Relations Commission ("PERC") that determined it committed an unfair labor practice in the collective bargaining process with the Citrus, Cannery Food Processing and Allied Workers, Drivers, Warehousemen and Helpers, Local Union 173 ("Union"). PERC ordered the Board to cease and desist from imposing a contractual provision which excludes discipline from the collective bargaining agreement's grievance and arbitration procedure. We agree with the Board's contention that it did not commit an unfair labor practice when it elected to exclude employee disciplinary matters from the collective bargaining agreement. Accordingly, we reverse the final order issued by PERC.

On February 7, 1995, the Union was certified as the exclusive bargaining representative for certain Sarasota County employees. Negotiating sessions followed during which the Union and the County¹ reached tentative agreement on several issues. Whether the final contract would include provisions relating to employee discipline was a major area of disagreement. The County's position throughout the collective bargaining process was that employee discipline matters would not be contained in the final agreement and would remain the sole province of the Board because the Board had in place a civil service disciplinary process to which all other employees were subject. The Board wanted to keep all employees within the same disciplinary system. Just as fervently, the Union sought the inclusion of these issues in what would be the first-ever contract between the Union and the Board.

In August 1996, the Union declared that the parties had reached an impasse. The parties then began the section 447.403, Florida Statutes (1995), procedures to resolve the outstanding impasse issues. First, a hearing was held before a special master. Before and during this hearing, the County continued to be willing to negotiate and, in fact, the parties resolved several outstanding issues during this time. Following the special master hearing, the Board, in accordance with section 447.403(4), held its own impasse resolution hearing and decided which versions of the provisions at impasse would be part of the final agreement. Thereafter, the County submitted the final Board-approved written collective bargaining agreement to the Union for ratification. The final agreement excluded the issues of employee discipline. The Union neither ratified nor rejected the collective bargaining agreement. Rather, it filed an unfair labor practice charge against the Board. After a full hearing before a PERC hearing officer, who made a recommended report, PERC resolved all claims, save one, asserted by the Union in favor of the Board. We now review the remaining claim, PERC's finding that the Board must include the subject of employee discipline in the collective bargaining agreement so that disputes involving discipline are resolved through the agreement's grievance and arbitration procedures.

The question presented is whether a section 447.501(1)(a) violation occurs when a public employer insists in the collective bargaining process that it will not include employee discipline as a subject covered by the collective bargaining agreement. If the public employees, through their union, possess the right to include this subject in the bargaining agreement under Part II of Chapter 447,² then such a position by the public employer would interfere with the public employees' rights and would constitute, by definition, an unfair labor practice. Conversely, in the absence of such a right, there can be no unfair labor practice.

Section 447.401 does require one provision in all public employee labor contracts, that there be a negotiated grievance procedure for the interpretation or application of the collective bargaining agreement. It further requires that the final step of such a process be binding arbitration by an...