City of Orlando v. Florida Public Employees Relations Com'n, 82-103

• Decision Date: 23 June 1983
• Docket Number: No. 82-103,82-103
• Citation: 435 So.2d 275
• Parties: CITY OF ORLANDO, Appellant, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Orange County Police Benevolent Association, Appellees.
• Court: Florida District Court of Appeals

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.

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 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 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 criteria and procedures for promotion to the rank of lieutenant, a position outside of the bargaining unit represented by the union.

The City argues that PERC has made an interpretation of law and the question on appeal is whether the agency has "erroneously interpreted a provision of law." § 120.68(9), Fla.Stat. (1981). See Pasco County School Board v. Florida Public Employees Relations Comm., 353 So.2d 108 (Fla. 1st DCA 1978). PERC argues that it has made a policy determination and the only question is whether it acted within the range of discretion delegated to it. § 120.68(12), Fla.Stat. We conclude that in determining that the City is required to bargain regarding procedures for promotion to positions outside the bargaining unit as a term and condition of employment of those within the bargaining unit, PERC has incorrectly interpreted PERA, so we are dealing with a question of law which we are obligated to correct. See School Board of Polk County v. Florida Public Employees Relations Commission, 399 So.2d 520 (Fla.2d DCA 1981); Pasco County School Board v. Florida Public Employees Relations Commission.

Under sections 447.301(2) and 447.309(1), Florida Statutes (1981), a public employer is obligated to bargain collectively in the determination of the wages, hours, and terms and conditions of employment of the public employees within the bargaining unit and the failure to bargain on such mandatory items is an unfair labor practice. School Board v. Indian River County Education Ass'n, 373 So.2d 412 (Fla. 4th DCA 1979); School Board of Orange County v. Palowitch, 367 So.2d 730 (Fla. 4th DCA 1979). No definition of the phrase "wages, hours, and terms and conditions of employment" is provided so as to delineate exactly what constitutes a mandatory bargaining item. It has been held that promotional procedures for positions within the bargaining unit is a term and condition of employment and hence a mandatory subject for bargaining. Orange County Police Benevolent Ass'n v. City of Orlando, 7 FPER p 12019 (1980) That issue is not involved here, as the record indicates that the parties did bargain as to such promotion procedures. ³ The question here is whether promotion procedures and criteria for a position outside the bargaining unit are within the classification of "terms and conditions of employment." This issue appears to be one of first impression in Florida.

Florida courts have not developed a precise test for determining whether a certain subject is important enough to be considered a "term and condition of employment." However, federal courts, in construing the language in section 8(d) of the National Labor Relations Act ⁴ (which is identical to the relevant language here), ⁵ have enunciated various tests. In Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), the Supreme Court declared that an issue is the subject of mandatory bargaining if it "settle[s] an aspect of the relationship between the employer and employees." In Allied Chemical, the company had been charged with an unfair labor practice because it had unilaterally modified certain insurance benefits for its retired employees. The NLRB had determined that the company was guilty of an unfair labor practice in refusing to bargain with...