City of New Port Richey v. Hillsborough County Police Benev. Ass'n, Inc., 86-70

• Decision Date: 04 March 1987
• Docket Number: No. 86-70,86-70
• Citation: 505 So.2d 1096,12 Fla. L. Weekly 707
• Parties: 12 Fla. L. Weekly 707, 8 Employee Benefits Cas. 1364 CITY OF NEW PORT RICHEY, Appellant, v. HILLSBOROUGH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1096

505 So.2d 1096

12 Fla. L. Weekly 707, 8 Employee Benefits Cas. 1364

CITY OF NEW PORT RICHEY, Appellant, v. HILLSBOROUGH COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Appellee.

No. 86-70.

District Court of Appeal of Florida Second District.

March 4, 1987.

Rehearing Denied April 22, 1987.

Peter D. Hooper, St. Petersburg, for appellant.

Gene "Hal" Johnson of Florida Police Benev. Ass'n, Inc., Tallahassee, for appellee.

CAMPBELL, Acting Chief Judge.

The issue on appeal is whether appellant, City of New Port Richey ("City"), improperly failed to bargain with appellee, Hillsborough County Police Benevolent Association, Inc. ("HCPBA"), before the City reduced its percentage of contribution to the Police Pension Fund.

Although the reduction did not affect the actuarial soundness of the plan or detrimentally affect either employee benefits or employee contributions, the Public Employees Relations Commission (PERC) found that the City's action was an unfair labor practice (section 447.501, Florida Statutes (1983)), and ordered the City to negotiate with HCPBA. The City appeals. We reverse.

The City maintains: (1) Sections 112.60, 166 and 447.209, Florida Statutes (1983) authorized the City to unilaterally set pension plan funding so long as the plan remained actuarially sound; (2) The reduction had no substantial impact on pension benefits or on required employee contributions to the plan; and (3) Under the management rights and zipper clauses of the collective bargaining agreement, HCPBA waived its right to bargain over the reduction.

After careful consideration of these arguments, we conclude that even though the City reduced the amount it contributed to the plan, that reduction had no impact on the employees' pension benefits or required contributions, and the City was not, therefore, required to bargain with HCPBA before it implemented the reduction.

It is well established that public employers are not only required to bargain over wages, hours and terms and conditions of employment, (section 447.309(1), Florida Statutes (1983)), but also over any other issues that may have an impact on wages, hours or terms and conditions of employment. Hillsborough Classroom Teachers Association, Inc. v. School Board of Hillsborough County, 423 So.2d 969, 970 (Fla. 1st DCA 1983). In the absence of a waiver, an emergency or an impasse action (section 447.403, Florida Statutes (1983)), a public employer who unilaterally alters any of these mandatory subjects of collective bargaining commits an unfair labor practice. § 447.501(1)(a) and (c), Fla.Stat. (1983); Central Florida Professional Fire Fighters, Local 2057 v. Board of County Commissioners of Orange County, 9 FPER § 14372, Nov. 14, 1983. This is true even if the altered term or condition of employment is not expressly contained in the collective bargaining agreement, but is impliedly included as part of the established status quo. School Board of Orange County v. Palowitch, 367 So.2d 730, 732 (Fla. 4th DCA 1979).

The evidence at trial revealed that the City, in its capacity as a public employer, entered into a collective bargaining agreement with HCPBA, the registered employee organization that had been certified to bargain on behalf of patrol officers, police sergeants, detectives and dispatchers for the City's police department. At the time that the collective bargaining agreement was entered, the parties had not bargained over the issue of retirement or pension benefits. In February of 1985, the City Council voted to alter the City's rate of contribution to the Police Pension Plan. HCPBA requested the City to negotiate the proposed change on the grounds that it directly affected terms and conditions of employment and, as such, was subject to negotiation. § 447.309. The City refused to negotiate and enacted the change. Prior to the change, the plan was funded by fixed rate contributions, the City's at 13.95 percent and the employees' at 4.5 percent.

The new ordinance provided that in those years when, for actuarial reasons, the City was required to contribute less than 4.5 percent of total payroll to the plan, the employees' contribution would be decreased to equal the percentage that the City contributed. In those years that the City's required contribution exceeded 4.5 percent, however, the employees' contribution would remain at 4.5 percent. As a result of the ordinance, the City reduced its contribution from the previous rate of 13.95 percent to 3.43 percent. The employees' rate of contribution was reduced from 4.5 percent to 3.4 percent. The parties stipulated that this decrease in contributions did not decrease current pension benefits or increase current pension contributions required of bargaining unit employees. Despite actuarial reports of soundness, the city manager had begun funding the plan at 13.95 percent at its inception in order to eliminate an unfunded...