City of Jacksonville Beach v. Public Emp. Relations Commission, NN-398

• Decision Date: 04 March 1980
• Docket Number: No. NN-398,NN-398
• Citation: 381 So.2d 283
• Parties: CITY OF JACKSONVILLE BEACH, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Jacksonville Beach Fire FightersAssociation, Local 2622, Appellees.
• Court: Florida District Court of Appeals

Page 283

381 So.2d 283

CITY OF JACKSONVILLE BEACH, Appellant, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and Jacksonville Beach Fire FightersAssociation, Local 2622, Appellees.

No. NN-398.

District Court of Appeal of Florida, First District.

March 4, 1980.

Rehearing Denied April 8, 1980.

Michael J. Grogan of Coffman & Coleman, Jacksonville, for appellant.

No appearance for appellees.

ERVIN, Judge.

City of Jacksonville Beach appeals an order of the Public Employees Relations Commission (PERC) which included fire lieutenants in a bargaining unit contrary to an agreement between the City and the Jacksonville Beach Fire Fighters Association. We affirm PERC's order because we find the evidence supports the fire lieutenants' inclusion in the unit. The issue mentioned in the dissent, that PERC erred by unilaterally including those positions in the bargaining unit contrary to agreement between the parties, was never made a point on appeal. Indeed, the two cases from this court relied upon in the dissent, School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976), and City of Titusville v. PERC, 330 So.2d 733 (Fla. 1st DCA 1976), were not cited in appellant's brief. That point has now been waived and will not be considered by us for the first time on appeal.

AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., concurs in part and dissents in part.

BOOTH, Judge, concurring in part and dissenting in part:

I dissent from the majority's affirmance of PERC's inclusion of fire lieutenants in the bargaining unit with rank and file firefighters. PERC is mandated by § 447.307(1)(a), F.S., to determine the appropriateness of a bargaining unit where both parties have entered into a consent agreement. However, PERC may not enlarge the agreed upon bargaining unit unilaterally, School Board of Marion County v. PERC, 330 So.2d 770 (Fla. 1st DCA 1976); City of Titusville v. PERC, 330 So.2d 733 (Fla. 1st DCA 1976). Here, the Union and the public employer agreed that fire lieutenants would be excluded from the bargaining unit. PERC unilaterally included that position in the bargaining unit contrary to the agreement between the parties, the opinions of this court, its statutory mandate, and its own decisions in Cape Coral Professional Firefighters, Local # 2424, IAFF, AFL-CIO and City of Cape Coral, 4 FPER P 4198 (1978), and Professional Firefighters of Naples, Local # 214, and City of Naples, 4 FPER P 4021 (1978).

Accordingly, I would REVERSE that...