City of Punta Gorda v. Public Emp. Relations Com'n

• Decision Date: 25 April 1978
• Docket Number: No. GG-193,GG-193
• Citation: City of Punta Gorda v. Public Emp. Relations Com'n, 358 So.2d 81 (Fla. App. 1978)
• Parties: 98 L.R.R.M. (BNA) 2660 CITY OF PUNTA GORDA, Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and District Council # 66, International Brotherhood of Painters and Allied Trades, Respondents.
• Court: Florida District Court of Appeals

Page 81

358 So.2d 81

98 L.R.R.M. (BNA) 2660

CITY OF PUNTA GORDA, Florida, Petitioner, v. PUBLIC EMPLOYEES RELATIONS COMMISSION and District Council # 66, International Brotherhood of Painters and Allied Trades, Respondents.

No. GG-193.

District Court of Appeal of Florida,First District.

April 25, 1978.

Rehearing Denied May 23, 1978.

Harrison C. Thompson, Jr., Thomas M. Gonzalez of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.

William E. Powers, and Bruce A. Leinback, Tallahassee, for respondents.

ERVIN, Judge.

The City petitions for review from a PERC order validating a union election held among city employees. We uphold the agency action.

In September, 1976, the City and District Council 66, International Brotherhood of Painters and Allied Trades, entered into a Certification upon Consent Election Agreement. The agreement provided that a secret ballot election would be held on October 8, 1976, between the hours of 7:00 a. m. and 8:30 a. m. and 3:00 p. m. and 5:00 p. m. Ninety city employees were considered eligible to vote. Eighty-seven voted, 44 voting for the union and 43 against. As provided by PERC Rule 8H-3.28, the City filed objections before the Chairman of PERC. The objections were: (1) The hours of voting were too limited; (2) inflammatory statements made by the union business agent, Ed Prata, exceeded permissible bounds of pre-election campaigning; (3) a challenge was made by Prata to the City's finance director to a debate before the employees, knowing the legal proscription against employer surveillance prevented management from attending; (4) the bargaining unit contained three employees who should have been excluded as confidential employees; (5) thirteen supervisors should have been excluded.

An investigation of the objections was conducted, resulting in the Chairman's report dismissing all the objections filed by the City. The report made detailed findings of fact and conclusions of law. After the City's request for the review, the Commission issued orders affirming the Chairman's report and certifying District Council 66 as the exclusive bargaining agent for those persons described in the consent election agreement.

The City first argues the Commission failed to provide a hearing as required by Chapter 120 of the Administrative Procedure Act. We agree that a ruling upon a proper party's objections to an election is one "in which the substantial interests of a party are determined by an agency" so that the hearing provisions of Section 120.57, Florida Statutes (Supp.1976), apply. The prefatory language in that section makes the final, evidentiary hearing of subsection (1) applicable whenever material facts are in dispute "unless waived by all parties." We find waiver occurred here since neither the City nor the union requested a formal hearing on the objections. We do not interpret Chapter 120 as requiring an agency to convene an unrequested formal hearing whenever it perceives the possibility of a disputed issue of material fact. Just as a litigant must request trial by jury, so must a substantially affected person affirmatively seek a 120.57(1) hearing.

The question then is whether the Commission complied with Section 120.57(2), pertaining to informal proceedings and applicable when 120.57(1) has not been utilized. As we held in General Development Corp. v. Division of State Planning, 353 So.2d 1199, 1209-1210 (Fla. 1st DCA 1977), Section 120.57(2) requires notice, opportunity and a final order...