City of Safety Harbor v. Communications Workers of America

• Decision Date: 11 March 1998
• Docket Number: No. 96-2573,96-2573
• Citation: 715 So.2d 265
• Parties: 158 L.R.R.M. (BNA) 2305, 23 Fla. L. Weekly D705 CITY OF SAFETY HARBOR, Florida, Appellant, v. COMMUNICATIONS WORKERS OF AMERICA and Public Employees Relations Commission, Appellees.
• Court: Florida District Court of Appeals

Page 265

715 So.2d 265

158 L.R.R.M. (BNA) 2305, 23 Fla. L. Weekly D705

CITY OF SAFETY HARBOR, Florida, Appellant, v. COMMUNICATIONS WORKERS OF AMERICA and Public Employees Relations Commission, Appellees.

No. 96-2573.

District Court of Appeal of Florida First District.

March 11, 1998.

Charles J. Thomas and Deborah S. Crumbley, of Thompson, Sizemore & Gonzalez, P.A., Tampa, for Appellant.

Carla D. Franklin of Franklin, Donnelly & Gross, Gainesville, for Appellee Communications Workers of America.

Jack E. Ruby, Assistant General Counsel, Tallahassee, for Appellee Public Employees Relations Commission.

KAHN, Judge.

The City of Safety Harbor appeals a final order entered by the Public Employees Relation Commission (PERC) verifying the results of a representation election and certifying the Communications Workers of America (CWA) as the exclusive collective bargaining representative for a bargaining unit that PERC determined was comprised solely of nonprofessional employees. Disregarding the parties' stipulation that "Recreation Leader II" was a professional classification, PERC ordered Recreation Leaders II included in the proposed bargaining unit. Communications Workers of Am. v. City of Safety Harbor, 22 F.P.E.R. p 27125 (1996).

The final order entered by PERC must be reversed and a new election held. This court is not required to defer to PERC's construction of section 447.203(13)(a), Florida Statutes (1995), insofar as PERC has determined that compliance with section 447.203(13)(a)4. is mandatory. An agency's construction of a statute is not entitled to deference where the agency has erroneously interpreted a provision of law. See Pensacola Jr. College v. Public Employees Rels. Comm'n, 400 So.2d 59 (Fla. 1st DCA 1981); Southeast Volusia Hosp. Dist. v. National Union of Hosp. & Health Care Employees, 429 So.2d 1232 (Fla. 5th DCA 1983), appeal dismissed, 452 So.2d 568 (Fla.1984).

Section 447.203(13) provides:

(13) "Professional employee" means:

(a) Any employee engaged in work in any two or more of the following categories:

1. Work predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work;

2. Work involving the consistent exercise of discretion and judgment in its performance;

3. Work of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and

4. Work requiring advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning or a hospital, as distinguished from a general academic education, an apprenticeship, or training in the performance of routine mental or physical processes.

(b) Any employee who:

1. Has completed the course of specialized intellectual instruction and study described in subparagraph 4 of paragraph (a); and

2. Is performing related work under supervision of a professional person to qualify himself to become a professional employee as defined in paragraph (a).

§ 447.203, Fla. Stat. (1995). The statute denominates a "professional employee" as "any employee engaged in work in any two or more of the following categories:...." The statute then enumerates four categories. The first three are separated by a semicolon and the third and fourth are separated by a semicolon followed by the conjunction "and."

The Commission, in Florida Police Benevolent Association v. State of Florida, 10 F.P.E.R. p 15228 (1984), found the statutory language defining "professional employee" ambiguous. PERC determined that the fourth category, the so-called "specialized intellectual instruction" category, is a threshold requirement. PERC has since continued to treat the educational element as a threshold requirement. See School Dist. of Leon County v. Leon Educ. Support Personnel Ass'n, 21 F.P.E.R. p 26187 (1995); Government Supervisors Ass'n of Florida v. Metropolitan Dade County, 19 F.P.E.R. p 24184 (1993).

Respectfully, we are unable to agree with PERC's construction of section 447.203(13)(a). The introductory clause of the statute, section 447.203(13)(a), imposes the requirement that a professional employee must be engaged in work "in any two or more" of the following four enumerated categories. The use of the word "any" is completely at odds with PERC's decision to treat the (a)4 criterion as a threshold. Where the language of a statute is clear and unambiguous, the statute must be given its plain and ordinary meaning, and no further review of legislative history is necessary. Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla.1992); Streeter v. Sullivan, 509 So.2d 268 (Fla.1987); Holly v. Auld, 450 So.2d 217 (Fla.1984); Suwannee River Water Management Dist. v. Pearson, 697 So.2d 1224, 1226 (Fla. 1st DCA 1997). Based on the plain language in the introduction of the statute, we cannot construe the specialized intellectual instruction language as a threshold requirement.

As noted, PERC traces its present construction of the statute to its opinion in Florida Police Benevolent Association, Inc. v. State. That opinion contains the following statement:

The National Labor Relations Act (NLRA) includes the same four criteria as Florida Statute and requires that the educational requirement be met. See 29 U.S.C.A. § 152(12)(1976) and Express-News Corp. v. San Antonio Typographical Union, 223 NLRB 627 (1976)(Journalists possessing general college degree not professional employees under NLRA). Our examination reveals approximately sixteen states which include a definition of professional employee in their comprehensive collective bargaining statutes.... Each of these definitions includes an educational requirement as a mandatory element.

10 F.P.E.R. p 15228. PERC's reliance on the federal statute and similar statutes of other states is misplaced. Florida's statute, unlike the federal statute, and the other statutes relied upon by PERC, permits employees to qualify as "professional" based on satisfaction of "any two or more" of the four listed criteria. The federal statute ¹ and other state laws ² do not contain this modifying language. The federal statute simply enumerates the four categories and provides that any employee engaged in work satisfying the four categories is a professional employee. Several of the state statutes (California, Connecticut, Hawaii, Kansas, Oregon and Wisconsin) track the federal statute. A majority of the state statutes, however, expressly require a specialized intellectual instruction by using the conjunction "and" and not qualifying the list with language comparable to Florida's "any two or more." Accordingly, we hold that PERC's construction of the statute is erroneous.

Because there has been no suggestion that Safety Harbor's Recreation Leaders II do not meet the first two criteria of section 447.203(13)(a), they fall within the definition of "professional employee" pursuant to section 447.203(13)(a). PERC improperly disregarded the parties' stipulation that "Recreation Leader II" was a professional classification and classified those employees as nonprofessional employees for collective bargaining purposes. Accordingly, we vacate the order verifying the results of the representative election and remand with instructions that PERC require a new election.

REVERSED and REMANDED.

DAVIS and BENTON, JJ., concur with written opinions.

DAVIS, Judge, concurring.

I concur with the majority that the plain language of this statute requires satisfaction of any two or more of the four listed criteria and does not establish the educational component as a threshold requirement for a determination that an employee is a "professional" employee. I write solely to note the discrepancy this creates between this statute and the accepted legal definition of a "professional" for other purposes. For example, in explaining what careers are considered "professional" for purposes of the professional malpractice statute of limitations, the Florida Supreme Court stated that "a vocation is not a profession if there is any alternative method of admission that omits a required four-year undergraduate degree or a graduate degree." Garden v. Frier, 602 So.2d 1273, 1276 (Fla.1992) (emphasis in original). See also Mizrahi v. Valdes-Fauli, Cobb & Petrey, P.A., 671 So.2d 805, 806 (Fla. 3d DCA 1996).

BENTON, Judge, concurring.

I write separately because in my view the Public Employees Relations Commission (PERC) properly classifies as "professional"--or did so until today--only those employees whose work requires "advanced knowledge in a field of science or learning." Here, however, without the prerequisite votes, four employees who should properly have been classified as professional employees were included in the same bargaining unit with nonprofessional employees. I therefore join the judgment of the court reversing and remanding for further proceedings in which "no unit shall be established or approved for purposes of collective bargaining which includes both professional and nonprofessional employees unless a majority of each group votes for inclusion in such unit." § 447.307(4)(h), Fla. Stat. (1995).

I.

I would leave undisturbed PERC's construction of subsection 447.203(13)(a), Florida Statutes (1995), insofar as PERC determined that compliance with subsubsection 447.203(13)(a)4. is mandatory, if an employment position is to be classified as professional. Our statute requires as much. The National Labor Relations Act and analogous statutes in other states have similarly been construed to limit professional employment to work requiring advanced knowledge. Specialized labor law tribunals are apparently unanimous on the point. "Expert tribunals are entitled to the greatest deference in recognition of their special competence in dealing with labor problems." Pasco County Sch. Bd. v. Florida Public Employees Relations Comm'n, 353...