Coral Gables v. Stathers Memorial Lodge 7

• Decision Date: 06 February 2008
• Docket Number: No. 3D06-2305.,3D06-2305.
• Parties: The CITY OF CORAL GABLES, Appellant, v. CORAL GABLES WALTER F. STATHERS MEMORIAL LODGE 7, FRTERNAL ORDER OF POLICE, Appellee.
• Court: Florida District Court of Appeals

976 So.2d 57

The CITY OF CORAL GABLES, Appellant, v. CORAL GABLES WALTER F. STATHERS MEMORIAL LODGE 7, FRTERNAL ORDER OF POLICE, Appellee.

No. 3D06-2305.

District Court of Appeal of Florida, Third District.

February 6, 2008.

Rehearing Denied March 6, 2008.

Bryant, Miller, Olive, P.A., and James C. Crosland and Denise M. Heekin, Samuel S. Heywood, for appellant.

Phillips & Richard, P.A., and Kathleen Phillips, Miami, for appellee.

Before WELLS, SHEPHERD and ROTHENBERG, JJ.

SHEPHERD, J.

The City of Coral Gables (the City) appeals a final order of the Public Employees Relations Commission (the Commission), finding the City committed an unfair labor practice, by seeking to coerce the president and vice president of the appellee Coral Gables Walter F. Stathers Memorial Lodge 7, Fraternal Order of Police (the FOP or the Union), to forego receipt of some $821,000 in pension contributions the City had agreed to repay to its union-represented sworn police officers pursuant to the settlement of a grievance prosecuted by the Union under the parties' collective bargaining agreement. The City argues the application of an incorrect evidentiary standard by the Commission necessitates reversal of the Commission order. We agree, and, for the additional reasons expressed below, direct the Commission to dismiss the charge. A brief summary of the factual and administrative history of this case is necessary to our decision.

FACTUAL BACKGROUND

This litigation arises out of the skyrocketing cost to the City in recent years of funding its employee pension program. In an effort to stanch the cost, the City negotiated in its 2003-2005 collective bargaining agreement with its police union an employee contribution provision. The provision reads:

ARTICLE 38

RETIREMENT SYSTEM

....

6. Effective upon ratification of the Agreement, bargaining unit members shall contribute three percent (3%) of their gross pay (excluding uniform allowances) to the City's retirement plan. Effective October 1, 2004, bargaining unit members shall contribute another two percent (2%) to the City's retirement plan for a total of a five percent (5%) contribution. The City agrees that contributions will be transferred to the retirement fund no later than seven (7) days after the members receive their paychecks. It is agreed that a re-opener will occur within nin[e]ty (90) days of ratification of this Agreement for the purpose of negotiating a change for the Cost of Living (C.O.L.A.) provision of the retirement plan. It is further agreed that the five percent (5%) contribution mentioned above will be applied to the cost of a mutually acceptable C.O.L.A. improvement. The City of Coral Gables Fraternal Order of Police, Lodge # 7 agrees to equally share the expense of an actuarial study to determine the cost of a C.O.L.A. improvement.

(emphasis added). After ratification, the officers began making their contributions as agreed. However, during the re-opener the City refused to offer any change in the C.O.L.A. provision of the retirement plan, citing city budgetary constraints and ever-increasing pension costs. In response, the Union filed a grievance pursuant to the collective bargaining agreement, arguing that a C.O.L.A. increase was intended as a quid pro quo for the officers' retirement plan assistance. On the eve of arbitration of this dispute, the City agreed to settle the grievance by returning the retirement contributions to the officers and halting further deductions.

At the time of the settlement, the parties also were engaged in negotiations for a successor agreement to the 2003-2005 collective bargaining agreement. The Union advanced a first-year wage proposal offer of a zero percent wage increase, but with the elimination of pension contributions. The City rejected this proposal and declared an impasse. Clearly miffed at what it considered to be Union legerdemain in seeking return of the pension contributions,¹ the City apparently was not of a mind to allow the pension contribution component of the 2003-2005 collective bargaining agreement to become a sub silentio officer wage increase during the next contract period. Indeed, the City unilaterally withheld payment of the settlement sum to its sworn police officer corps during this time in an effort to fold its obligation to repay into the successor agreement negotiations.

On January 12, 2006, similarly frustrated, the Union initiated an unfair labor practice charge against the City, alleging the City had not complied with the terms of the earlier grievance settlement. On February 16, the City settled this charge by again agreeing to pay and to stop the officer deductions, apparently forthwith. Coral Gables City Manager David Brown called Union President Eugene Gibbons and asked him to meet him the next morning to receive the reimbursement checks.

The next morning, February 17, Brown and Gibbons met. Union Vice President Randy Hoff accompanied Gibbons. Brown did not bring the checks. According to Gibbons, Brown told him:

I don't think you know what you're doing or what you're getting yourself into.

....

[H]e went [on] to tell me that if we were to take these checks back, that we were looking at a long future of no raises for at least the next three years, a zero percent wage increase....

According to Gibbons, Brown also expressed that "the City Commission was extremely upset at the FOP's position[ ] in taking the checks back and that he had been instructed by the Commission to recoup that money one way or another." Except as to certitude, Brown does not materially dispute Gibbons' account of the conversation. Gibbons demanded the checks. They were handed over on February 21.

On March 6, 2006, the Union initiated the Unfair Labor Practice Charge, which has become the subject of this appeal. The focus of the charge is the February 17 conversation. The charge alleged that the City, through Brown, violated sections 447.501(1)(a), (c), and (d) of the Florida Public Employees Relation Act, ch. 447, pt. II, Fla. Stat. (2007) ("the Act"), by threatening the FOP with a "zero percent wage increase for the next three years, or imposing some other retaliatory method[,]" if it accepted the reimbursement checks on behalf of its sworn police officer bargaining unit members pursuant to the settlement of the January 12, 2006 unfair labor practice charge.

THE ADMINISTRATIVE PROCEEDING

On May 4, 2006, the parties participated in an administrative hearing convened pursuant to section 120.57(1)(a), Florida Statutes (2006). On June 20, the hearing officer issued a recommended order, in which he concluded the City, through Brown, had made an "unambiguous threat" to the officer corps through its bargaining agent in violation of section 447.501(1)(a), Florida Statutes (2006), which prohibits public employers, their agents, or representatives from "[i]nterfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under [the Florida Public Employees Relations Act, chapter 447, part II "the Act"]." The hearing officer rejected as "premature" the Union's claim under section 447.501(1)(c), Florida Statutes (2006),² wherein the Union alleged the City was not bargaining in good faith in pending impasse proceedings in the successor collective bargaining agreement discussions. Finally, the hearing officer rejected the Union's claim that the City, again through Brown's action, had engaged in retaliation against the represented police corps in violation of section 447.501(1)(d), Florida Statutes (2006),³ for the filing by their union bargaining representative of the January 12, 2006 unfair labor practice charge, brought to secure compliance with the earlier grievance settlement. While the hearing officer found the timing of Brown's statement "suspect" — occurring as it did on February 17, 2006, just one day after the settlement of the January 12, 2006, charge — he nevertheless concluded, "Brown's threat to retaliate against the employees was motivated by his disagreement with Gibbons' interpretation of the [collective bargaining] contract and the ramifications stemming from that disagreement, not because the FOP filed the unfair labor practice charge." (emphasis added).

At the hearing, Brown advanced a softer rendition of the February 17 conversation, stating he simply was seeking to promote labor peace into the future by advising Union leadership about what he felt was "likely to happen" or "may happen" in its future bargaining encounters with the City Commission, if the Union insisted on taking the reimbursement checks. The hearing officer, however, found the statements more than just a friendly warning:

Brown, as the City Manager, was concerned about the long-range effects on labor peace in the City because the FOP was seeking reimbursement of the employees' pension contributions. In his attempt to maintain labor harmony, Brown's statements were more forceful than he realizes. Brown's testimony that he was attempting to emphasize to Gibbons and Hoff that they would "really" be at impasse if the employees to the reimbursement checks is credited.

The hearing officer concluded:

Brown's unambiguous threat of future wage freezes and that the City would recoup the money the employees paid into the pension fund one way or another was intended to coerce the employees into relinquishing their collective right to the reimbursement checks, which was obtained through concerted, protected activity. Brown's threat has the foreseeable effect of instilling in the employees a reasonable belief that further participation in protected activity might also result in future adverse employment consequences; thus, the City violated Section 447.501(1)(a), Florida Statutes.

On July 3, 2006, the City filed three exceptions to the hearing officer's recommended order. First, the City argued that the hearing officer erred in finding a violation of section 447.501(1)(a), because the only "right" with...