Communications Workers of Am. v. City of Gainesville

• Decision Date: 09 May 2011
• Docket Number: No. 1D10–1616.,1D10–1616.
• Citation: 190 L.R.R.M. (BNA) 3373,65 So.3d 1070
• Parties: COMMUNICATIONS WORKERS OF AMERICA; AFL–CIO, CLC; Florida Police Benevolent Association, Inc.; Gainesville Professional Fire Fighters, IAFF, Local 2157; and Gator Lodge 67, Inc., Fraternal Order of Police, Appellants,v.CITY OF GAINESVILLE, Florida, Appellee.
• Court: Florida District Court of Appeals

65 So.3d 1070

190 L.R.R.M. (BNA) 3373

COMMUNICATIONS WORKERS OF AMERICA; AFL–CIO, CLC; Florida Police Benevolent Association, Inc.; Gainesville Professional Fire Fighters, IAFF, Local 2157; and Gator Lodge 67, Inc., Fraternal Order of Police, Appellants,

v.CITY OF GAINESVILLE, Florida, Appellee.

No. 1D10–1616.

District Court of Appeal of Florida, First District.

May 9, 2011.

Paul A. Donnelly, Laura A. Gross, and Jung Yoon of Donnelly & Gross, P.A., Gainesville, and Hal Johnson, General Counsel for Florida Police Benevolent Association, Tallahassee, for Appellants.Thomas M. Gonzalez and Christopher M. Bentley of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellee.David C. Miller and Theresa B. Proctor of Bryant Miller Olive, Miami, Amicus Curiae, The Florida League of Cities, Inc., in support of Appellee.BENTON, C.J.

Four labor unions representing employees of the City of Gainesville appeal a final order of the Public Employees Relations Commission (PERC) that rejected Hearing Officer Choppin's ruling that the City had engaged in unfair labor practices, in violation of sections 447.501(1)(a) and (c), Florida Statutes (2008), by refusing to bargain over changes it made to health insurance benefits for city employees, once they retire. The parties' collective bargaining agreements did not address the issue, so it was incumbent on the appellants to show that the City's furnishing retirees' health benefits amounted to an established past practice. Persuaded the hearing officer got it right, we reverse and remand to PERC for further proceedings.

The parties' collective bargaining agreements do not discuss health insurance benefits for retirees. But the City has helped pay for such benefits for many years. In fact, until 1995 the City paid 100% of retirees' health insurance premiums (for individual coverage) including all premium increases occurring after retirement. The City reduced the percentage in 1995, but continued to pay a fixed percentage of retirees' insurance premiums, including the same fixed percentage of premium increases occurring after retirement.

The City effected the change in 1995 by adopting a city ordinance incorporating the formula. Gainesville, Fla., Ordinance 4066 (Mar. 27, 1995). While the 1995 change the ordinance represented was not the product of collective bargaining, the unions waived no collective bargaining rights going forward by acquiescing in the change.¹

The ordinance, and the formula it embodied, remained unchanged until 2008, when the City adopted a superseding ordinance, again changing its method of contributing to retirees' health benefits, this time by underwriting health insurance premiums up to a set dollar amount (rather than paying a percentage of the premiums). The 2008 change, which shifts to retirees the full amount (not merely a percentage) of any increase in premiums occurring in retirement, gave rise to the present controversy, and to unfair labor practice charges, because the City refused to bargain over the change.

When the unions filed unfair labor practice charges under sections 447.501(1)(a) and (c), Florida Statutes (2008), alleging the City's refusal to bargain, a PERC hearing officer conducted an evidentiary hearing. Eventually, the hearing officer recommended that PERC find that the City had engaged in an unfair labor practice by unilaterally changing the health insurance benefits employees would receive as retirees, without negotiating the changes with the unions. PERC rejected the hearing officer's recommendation, however, and dismissed the unfair labor practice charges. The unions then brought the present appeal.

Like PERC itself, we are “bound to honor a hearing officer's findings of fact unless they are not supported by competent, substantial evidence.” City of Winter Springs v. Winter Springs Prof'l, 885 So.2d 494, 497 (Fla. 1st DCA 2004) (citing Belleau v. Dep't of Envtl. Prot., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997)). In reviewing PERC's decisions, moreover, we must not lose sight of the fact that public employees have a constitutional right to bargain collectively. Art. I, § 6, Fla. Const. (“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”). The Florida Supreme Court has made it clear that “ ‘with the exception of the right to strike, public employees have the same rights of collective bargaining as are granted private employees by Section 6 [of Article 1 of the Florida Constitution].’ ” City of Tallahassee v. Pub. Emps. Relations Comm'n, 410 So.2d 487, 490 (Fla.1981) (quoting Dade Cnty. Classroom Teachers' Ass'n, Inc. v. Ryan, 225 So.2d 903, 905 (Fla.1969)). See also Chiles v. State Emps. Attorneys Guild, 734 So.2d 1030, 1036 (Fla.1999) (Article 1, section 6 of the Florida Constitution “expressly applies to ‘employees' without limitation, except that public employees do not have the right to strike.”).

Implementing this constitutional right, the Public Employees Relations Act, Chapter 447, Part II (PERA), provides:

The public policy of this state, and the purpose of this part, is to provide statutory implementation of s. 6, Art. 1 of the State Constitution, with respect to public employees ... This state's public policy is best effectuated by ... [r]equiring the state, local governments, and other political subdivisions to negotiate with bargaining agents duly certified to represent public employees. § 447.201, Fla. Stat. (2008). Section 447.309(1), Florida Statutes (2008), requires a public employer to bargain collectively the wages, hours, and other terms and conditions of employment for employees in each certified bargaining unit.²

Job-related benefits, although not catalogued in an existing bargaining agreement, may nevertheless constitute terms and conditions of employment which are not subject to change by the employer unilaterally. See Palowitch v. Orange Cnty. Sch. Bd., 3 F.P.E.R. 280 at 282 (1977), approved 367 So.2d 730 (Fla. 4th DCA 1979). “It is settled law that a public employer's unilateral alteration of the status quo of a mandatory subject of bargaining, i.e., wages, hours, and terms and conditions of employment of its employees, is a per se violation of Section 447.501(1)(a) and (c), Florida Statutes, absent a clear and unmistakable waiver, legislative body action taken after impasse, or extraordinary circumstances requiring immediate action.” Miami Beach Fraternal Order of Police. William Nichols Lodge No. 8 v. City of Miami Beach, 36 F.P.E.R. 127 at 275–76 (2010). The status quo depends both on the provisions of collective bargaining agreements and on the content of established past practices. At issue here is the City's allegedly established past practice of defraying a percentage of municipal employees' health insurance premiums upon retirement.

Like private employees,³ public employees have the right to bargain for changes to established past practices, even though they are not mentioned in collective bargaining agreements. See Sch. Bd. of Orange Cnty. v. Palowitch, 367 So.2d 730, 731 (Fla. 4th DCA 1979) (school board's unilateral increase of length of work year, as established by past practice, was a per se violation). In Palowitch, the Fourth District adopted PERC's order, which explained:

The same policy considerations underlying the prohibition of unilateral changes during negotiations are equally applicable to unilateral changes in subjects not covered by an existing agreement. Terms and conditions not discussed by the parties in negotiations nevertheless continue to be terms and conditions of employment and, by virtue of Section 447.309(1), an employer must negotiate with the certified bargaining agent prior to changing them. The obligation to bargain imposed by Section 447.309(1), extends to all terms and conditions of employment. To conclude that terms and conditions of employment upon which the parties fail to reach agreement lose their status as such and somehow become management prerogatives leads to an absurd and fruitless result.

Adoption of the School Board's argument would require a bargaining agent for employees to bargain and reach agreement on every conceivable item falling within the scope of “wages, hours, and terms and conditions of employment” or suffer immediate waiver upon the execution of an agreement.

Palowitch, 367 So.2d at 731–32 (emphasis supplied). Public employees' right to bargain for changes to established past practices includes the right to bargain for changes to the employer's contribution to current employees' health care premiums upon retirement ⁴ where the union contract is silent on this issue. See Hillsborough Cnty. Police Benevolent Ass' n, Inc. v. City of New Port Richey, 12 F.P.E.R. 17040 at 61 (1985).

In City of New Port Richey, PERC held that the city had committed an unfair labor practice, in violation of §§ 447.501(1)(a) and (c), by amending its ordinance to reduce its required contribution to the retirement fund where the city's contribution had been established by ordinance for four years and the union contract was silent on the matter. PERC explained that:

an employer's unilateral alteration of terms and conditions of employment established by past practice will give rise to an unfair labor practice when it is established that the past practice had been unequivocal, had existed substantially unvaried for a significant period of time prior to the change, and could reasonably have been expected by the employees to have continued unchanged.

Id. PERC went on to say that “... the City's rate and ratio of contribution to the pension fund had, through past practice [four years], ripened into an extra-contractual term and condition of employment which was unilaterally changed by the City.” Id. Surprisingly, PERC made no mention of its decision in City of New Port Richey in the order under review.

The formula under which the City made its contribution toward retirees' health...