Capo v. Florida Pub. Emps. Council 79, 4D10–5153.

• Decision Date: 29 February 2012
• Docket Number: No. 4D10–5153.,4D10–5153.
• Citation: 82 So.3d 1116
• Parties: Esteban CAPO, Appellant, v. FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME and Department of Children and Families, Appellees.
• Court: Florida District Court of Appeals

82 So.3d 1116

Esteban CAPO, Appellant,

v.FLORIDA PUBLIC EMPLOYEES COUNCIL 79, AFSCME and Department of Children and Families, Appellees.

No. 4D10–5153.

District Court of Appeal of Florida, Fourth District.

Feb. 29, 2012.

Mark J. Berkowitz of Mark J. Berkowitz, P.A., Fort Lauderdale, for appellant.

Andrew Weltman, Staff Attorney and Alma R. Gonzalez, Special Counsel, for Appellee–Florida Public Employees Council 79 AFSCME.

TAYLOR, J.

Esteban Capo appeals the partial summary dismissal of his Amended Unfair Labor Practice charge against his labor union. We reverse, concluding that the Public Employees Relations Commission (“Commission”) erred when it determined that Capo's hybrid unfair labor charge, based on his union's processing of his grievance, was not timely filed under section 447.503(6)(b), Florida Statutes.

On September 23, 2010, Capo filed an unfair labor practice charge with the Commission against his union, Florida Public Employees Council 79, AFSCME, AFL–CIO (the “Union”), and his former employer, the Department of Children and Families (“DCF”).¹ In the charge, Capo alleged that DCF had unlawfully dismissed him from his position as a child protective investigator and that the Union subsequently breached its duty of fair representation in processing his grievance regarding that dismissal.

Capo asserted the following pertinent facts: (1) on June 12, 2009, he was dismissed from his position with DCF for reasons not constituting “just cause”; (2) because he held a position as president of a local chapter of the Union, the Union agreed to represent him in filing a grievance to challenge the DCF dismissal, but then failed to timely appeal his grievance to Step 3 of the grievance procedure, as required by the operative collective bargaining agreement in place between the Union and DCF; and (3) on May 3, 2010, as a result of the Union's failure, an arbitrator denied Capo's grievance as barred in light of its untimely filing without extenuating circumstances.

While the Union was handling the grievance procedure, Capo allegedly contacted Ed Moore, a Union representative, on several occasions “to follow-up on the grievance,” but Moore failed to do so. At some point around August 31, 2009, Moore allegedly told Capo that he would not be taking any further action with regard to the grievance. On August 31, 2009, Capo sent an e-mail to Moore, requesting to be informed of the status of his grievance, but Moore did not respond. Moore was allegedly upset with Capo because Capo had been complaining about certain Union representatives to the Union president.

The Union represented Capo throughout the arbitration process. In the unfair labor charge, however, Capo alleged that the Union's failure to timely appeal his grievance to Step 3 was not a mere oversight, but was retaliation for his previous complaints.

On August 12, 2010, Capo was suspended from his position as the president of a local chapter of the Union.

On September 29, 2010, the Commission's General Counsel summarily dismissed the charge on the grounds that the claims were either untimely filed or factually deficient. On October 13, 2010, Capo filed an Amended Unfair Labor Practice charge.

In an order dated October 19, 2010, the Commission's General Counsel determined that the events alleged to have occurred after March 21, 2010 (including Capo's suspension as president of the local union branch), were within the six-month limitations period that applied to the original unfair labor practice charge of September 23, 2010, and were factually sufficient to proceed to an evidentiary hearing. However, claims based on events occurring prior to March 21, 2010—including the grievance timeliness issue—were summarily dismissed as untimely under section 447.503(6)(b), Florida Statutes, which generally provides that a charge is untimely if it is based on an alleged unfair labor practice which occurred more than six months prior to the filing of the charge.

The General Counsel concluded that the limitations period began either on August 31, 2009 (when Capo would have known of Moore's alleged ineffective prosecution of the grievance) or on September 21, 2009 (the date when the grievance had been untimely filed at step three). Thus, the General Counsel concluded that Capo had until the end of February 2010, or at the latest until March 21, 2010, in which to file an unfair labor practice charge against the Union, but untimely filed his charge on September 23, 2010.

Capo appealed to the Commission the portion of the General Counsel's order which summarily dismissed his claims based on allegations occurring prior to March 21, 2010. Capo argued that, because he filed unfair labor charges against both the Union and DCF, this matter was a “hybrid action” for which the statute of limitations did not begin to run until the final action of May 3, 2010, when the arbitrator dismissed his grievance on timeliness grounds.

On November 23, 2010, the Commission upheld the General Counsel's partial dismissal of the Amended Unfair Labor Practice Charge. The Commission rejected Capo's argument that he was justified in waiting until the arbitration process was exhausted before filing the unfair labor practice charge because he initiated a “hybrid” action against both the Union and DCF. The Commission reasoned that the adoption of the hybrid theory would effectively result in an unauthorized tolling of the six-month statute of limitations under section 447.503(6)(b) for the dismissed portion of the amended charge. The Order dated November 23, 2010, specifically stated that Capo had thirty days to appeal the order to the appropriate district court of appeal. Capo timely filed a notice of appeal directed to this order.²

On appeal, Capo argues primarily that he was justified in completing the arbitration procedure before resorting to filing his hybrid unfair labor practice charge. He thus maintains that, because his charge was a hybrid cause of action asserting claims against both the Union and his former employer, the six-month limitations period began to run on May 3, 2010, when the arbitrator dismissed the grievance on timeliness grounds. We agree.

Although the standard of review of agency statutory interpretation has been described as de novo, an agency is nonetheless afforded wide discretion in the interpretation of a statute in which it is given the power and duty to administer. See Sullivan v. Fla. Dep't of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). “[A] reviewing court must defer to an agency's interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” Pub. Emps. Relations Comm'n v. Dade County Police Benevolent Ass'n, 467 So.2d 987, 989 (Fla.1985). “If the agency's interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed.” Fla. Dep't of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003). However, judicial adherence to the agency's view is not demanded when it is contrary to the statute's plain meaning. Werner v. Dep't of Ins. & Treasurer, 689 So.2d 1211, 1214 (Fla. 1st DCA 1997) (citation and internal quotation marks omitted). Where the language is clear and unambiguous, it must be given its plain and ordinary meaning. See Mayo Clinic Jacksonville v. Dep't of Prof'l Regulation, Bd. of Med., 625 So.2d 918, 919 (Fla. 1st DCA 1993).

State public employees relations law under Chapter 447 is to be “construed with the National Labor Relations Act as a model insofar as such construction is harmonious with the spirit and policy of Florida legislation on the subject.” United Faculty of Fla. v. Pub. Employees Emp. Relations Comm'n, 898 So.2d 96, 101 (Fla. 1st DCA 2005) (citation and internal quotation marks omitted). Section 447.503(6)(b), Florida Statutes, sets forth a six-month limitations period for bringing an unfair labor practice charge. The statute provides that “[i]f the commission determines that the alleged unfair labor practice occurred more than 6 months prior to the filing of the charge, the commission shall issue an order dismissing the case, unless the...