City of Orlando v. Florida Public Employees Relations Com'n, No. 82-103

CourtFlorida District Court of Appeals
Writing for the CourtORFINGER
Citation435 So.2d 275
Docket NumberNo. 82-103
Decision Date23 June 1983
PartiesCITY OF ORLANDO, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Orange County Police Benevolent Association, Appellees.

Page 275

435 So.2d 275
CITY OF ORLANDO, Appellant,
v.
FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Orange
County Police Benevolent Association, Appellees.
No. 82-103.
District Court of Appeal of Florida,
Fifth District.
June 23, 1983.
Rehearing Denied July 26, 1983.

Page 276

Thomas P. Moran and Christopher A. Detzel of Subin, Shams, Rosenbluth & Moran, P.A., Orlando, for appellant.

Edward S. Stafman, Staff Counsel, Public Employees Relations Com'n, Tallahassee, for appellee Florida Public Employees Relations Com'n.

Thomas J. Pilacek of Pilacek, Cohen & Sommers, Orlando, for appellee Orange County Police Benev. Ass'n.

ORFINGER, Chief Judge.

This appeal is from a final order of the Public Employees Relations Commission (PERC) finding appellant City of Orlando (City) guilty of an unfair labor practice. We reverse.

The unfair labor practice charge was filed by the Orange County Police Benevolent Association (PBA) which, since 1976, has been the certified bargaining representative for employees in the City's police department in the rank of sergeant and below. The PBA alleged that the City had violated the Public Employees Relations Act (PERA) by refusing to bargain as to procedures by which members of the City's police

Page 277

department would be promoted to the rank of lieutenant. The City answered, admitting its refusal to bargain regarding the procedures for promotion to lieutenant. The City denied any violation of PERA, however, contending that it is not required to bargain on the subject of promotion to lieutenant because lieutenants are not included within the bargaining unit represented by the PBA and because lieutenants have certain supervisory and managerial functions.

The parties stipulated below that at the time of certification, the PBA sought to have lieutenants incorporated into the bargaining unit, but PERC determined that these individuals should not be included in a unit composed primarily of patrolmen and sergeants. Indeed, PERC's order in the bargaining unit determination recognized that lieutenants, unlike sergeants, have direct authority to supervise and discipline other police officers and that lieutenants, along with captains and majors, have a major role in formulating departmental policy. The parties further stipulated that lieutenants evaluate the performances of members of the unit and also handle grievances from them.

The PBA's proposal regarding selection procedures for lieutenant positions was introduced into evidence at the hearing on the unfair labor practice charge, and it included provisions for time-in-grade requirements, testing procedures, selection criteria and the requirement of a rank-ordered promotion list with selection of the highest ranking candidate. The PBA's president testified that the PBA sought bargaining on this matter because promotion to lieutenant is traditionally the next step in advancement of a police officer's career after being a sergeant, and he added that "This is a major step for an individual in that he moves out of the bargaining unit into a management position which is outside the unit." This witness also admitted that under the PBA's proposal, the City would be limited to selecting lieutenants from those individuals who are existing sergeants.

While there has been no formal determination that the rank of lieutenant is a management position under PERA [Section 447.203(4), Florida Statutes (1981) ], the City relied on the testimony of acting police chief Howard McClain who testified that he viewed the position of lieutenant as an initial management position and that as such there was a need for flexibility in the selection of such personnel. McClain admitted that since at least 1975, there has been a time-in-grade requirement for sergeants to become eligible for promotion and all promotions to the rank of lieutenant have come from the rank of sergeant. However, he added that in the last three years certain changes in the process have been under consideration, including changes in the time-in-grade requirements and use of lateral entry from outside the department.

Following the hearing, the hearing officer determined that the City was under a duty to bargain with the PBA concerning the standards and criteria for promotion to the position of lieutenant and that its refusal constituted an unfair labor practice under section 447.501(1)(a), (c), Florida Statutes (1981). 1 The City filed exceptions to this order, following which PERC issued a final order upholding the conclusion that the City's refusal to negotiate on this point was an unfair labor practice. It is from PERC's final order that the instant appeal was taken.

Section 120.68(7), Florida Statutes (1981), which deals with judicial review of administrative action, requires that a reviewing court deal separately with disputed issues of agency procedure, interpretations of law, determinations of fact, or policy within the

Page 278

agency's exercise of delegated discretion. In the instant case, there are no disputed issues of agency procedure nor disputed determinations of fact. 2 The initial question, therefore, is whether PERC was making an interpretation of law or setting policy when it determined that under PERA, the scope of mandatory bargaining subjects included the...

To continue reading

Request your trial
9 practice notes
  • Honulik v. Town of Greenwich, No. 18046.
    • United States
    • Supreme Court of Connecticut
    • February 24, 2009
    ...61 Mich.App. 487, 492-94, 233 N.W.2d 49 (1975). Moreover, as the court in Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 280 (Fla.App.1983), noted, the Detroit decision, although it does conclude that the promotional process for positions outside the bargaining uni......
  • City of Miami v. F.O.P. Miami Lodge 20, No. 85-2863
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...enough to be considered a 'term and condition of employment.' " City of Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 278 (Fla. 5th DCA 1983). While no precise test exists for determining whether a certain term and condition of employment must be the subject of co......
  • Speedway Superamerica, LLC v. Dupont, No. 5D04-14.
    • United States
    • Court of Appeal of Florida (US)
    • May 26, 2006
    ...(quoting Green v. Burger King Corp., 728 So.2d 369, 370-71 (Fla. 3d DCA 1999)); see also Orlando v. Fla. Pub. Employees Relations Com., 435 So.2d 275, 279 (Fla. 5th DCA 1983). Applying this construction, there is a panoply of state and federal cases explicitly holding that Title VII caselaw......
  • Brewster v. Mcneil, Case No. 07-14205-CIV-MOORE/WHITE.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • June 12, 2009
    ...3d DCA 1999) (citing Kidd v. Jacksonville, 97 Fla. 297, 120 So. 556 (1929); City of Orlando v. Fla. Public Employees Relations Comm'n, 435 So.2d 275 (Fla. 5th DCA 1983); Dorr-Oliver, Inc. v. Linder Indus. Mach. Co., 263 So.2d 237 (Fla. 3d DCA 1972); Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d......
  • Request a trial to view additional results
9 cases
  • Honulik v. Town of Greenwich, No. 18046.
    • United States
    • Supreme Court of Connecticut
    • February 24, 2009
    ...61 Mich.App. 487, 492-94, 233 N.W.2d 49 (1975). Moreover, as the court in Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 280 (Fla.App.1983), noted, the Detroit decision, although it does conclude that the promotional process for positions outside the bargaining uni......
  • City of Miami v. F.O.P. Miami Lodge 20, No. 85-2863
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...enough to be considered a 'term and condition of employment.' " City of Orlando v. Florida Public Employees Relations Commission, 435 So.2d 275, 278 (Fla. 5th DCA 1983). While no precise test exists for determining whether a certain term and condition of employment must be the subject of co......
  • Speedway Superamerica, LLC v. Dupont, No. 5D04-14.
    • United States
    • Court of Appeal of Florida (US)
    • May 26, 2006
    ...(quoting Green v. Burger King Corp., 728 So.2d 369, 370-71 (Fla. 3d DCA 1999)); see also Orlando v. Fla. Pub. Employees Relations Com., 435 So.2d 275, 279 (Fla. 5th DCA 1983). Applying this construction, there is a panoply of state and federal cases explicitly holding that Title VII caselaw......
  • Brewster v. Mcneil, Case No. 07-14205-CIV-MOORE/WHITE.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • June 12, 2009
    ...3d DCA 1999) (citing Kidd v. Jacksonville, 97 Fla. 297, 120 So. 556 (1929); City of Orlando v. Fla. Public Employees Relations Comm'n, 435 So.2d 275 (Fla. 5th DCA 1983); Dorr-Oliver, Inc. v. Linder Indus. Mach. Co., 263 So.2d 237 (Fla. 3d DCA 1972); Delta Rent-A-Car, Inc. v. Rihl, 218 So.2d......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT