Dade County Police Benev. Ass'n v. City of Homestead, 81-2023

CourtCourt of Appeal of Florida (US)
Writing for the CourtJORGENSON; NESBITT
Citation444 So.2d 465
PartiesDADE COUNTY POLICE BENEVOLENT ASSOCIATION, Appellant, v. CITY OF HOMESTEAD and the Public Employees Relations Commission, Appellees.
Docket NumberNo. 81-2023,81-2023
Decision Date03 January 1984

Page 465

444 So.2d 465
CITY OF HOMESTEAD and the Public Employees Relations Commission, Appellees.
No. 81-2023.
District Court of Appeal of Florida,
Third District.
Jan. 3, 1984.

Page 466

Donald D. Slesnick, II, Coral Gables, for appellant.

Thomas W. Young, III, Tallahassee, for appellees.

Page 467



The Dade County Police Benevolent Association [the PBA] appeals that portion of a Florida Public Employees Relations Commission [PERC] order which assessed damages and attorney's fees against the PBA following a wildcat strike by City of Homestead police officers. In entering its order PERC rejected in part a PERC hearing officer's recommended order which dismissed the at-issue unfair labor practice charge against the PBA. For the reasons which follow we reverse the appealed portion of the PERC order and remand with directions to adopt the hearing officer's recommended order of dismissal.


The essential facts as found by the hearing officer are: Sergeant Nick Tauriello was elected by the Homestead police officers as their representative to the PBA during 1980 Homestead police contract negotiations. Tauriello performed the liaison role of communicating with the Homestead officers during the negotiations, calling meetings of the Homestead officers as he deemed it necessary. Tauriello did not attend meetings of the PBA Board of Directors. Sharon Dranow, a PBA employee, represented the PBA in the contract negotiations. These negotiations resulted in an impasse in July and a special master was appointed.

Early in the week of Monday, October 20, Tauriello was quoted in the press as having said, "The mood of the officers right now is that they're going to get sick, blue flu or whatever you want to call it." Nearly the entire Homestead police force was present at a shop meeting held the evening of Wednesday, October 22, as were Dranow, PBA President Hugh Peebles and PBA counsel Don Slesnick. Dranow, Peebles and Slesnick tried to talk the Homestead officers out of a walkout. Peebles explained that a walkout would be totally illegal and that under no circumstances would the PBA support such a walkout. The Homestead officers were visibly in disagreement and upset with Dranow, Peebles and Slesnick's position. Peebles did not believe that they had dissuaded the Homestead officers from a walkout and related this to news reporters after he, Dranow and Slesnick left the meeting. Meanwhile, Tauriello quieted the officers down and took a vote. The vote was unanimous: the officers would walk out on Friday, October 24.

On Thursday, October 23, Slesnick telephoned Tauriello and urged him to beg the officers not to go on strike. The officers met that afternoon and voted unanimously to put off the walkout until Monday, October 27, following the Homestead City Council impasse resolution meeting, and to decide then what to do. On the evening of Thursday, October 23, Tauriello attended, unexpectedly, his first PBA Board of Directors meeting. Tauriello attended because, like most of the Homestead officers, he believed that the PBA would support a walkout. Peebles read a memorandum addressed from him to Tauriello expressing the same position Peebles had stated the previous night. The PBA Board of Directors voted unanimously, in Tauriello's presence, not to support a walkout, and Tauriello relayed this information to the Homestead officers. Later that evening Slesnick telephoned Tauriello and during the course of an hour repeatedly explained that a walkout would be wrong.

On Monday, October 27, the Homestead City Council voted to accept the special master's recommended contract. Tauriello and those Homestead officers who were present walked out of the City Council meeting en masse and began picketing in front of the Homestead City Hall. Peebles, while watching the picketers, saw what he believed to be an on-duty officer join them. Peebles told Tauriello to direct any on-duty officers to return to work. Tauriello refused and was immediately removed from his position as PBA representative. After being enjoined by a court order from striking, the officers returned

Page 468

to work. They subsequently entered into a stipulated order regarding their discipline which is not here appealed.

In determining whether the PBA had supported the Homestead police officers' strike and had thereby violated sections 447.501(2)(e) and 447.505, Florida Statutes (1979), 1 the hearing officer applied common-law principles of agency. This agency analysis was used in the seminal case of Carbon Fuel Co. v. United Mine Workers of America, 444 U.S. 212, 100 S.Ct. 410, 62 L.Ed.2d 394 (1979), see, e.g., Case Note, 8 Fla.St.U.L.Rev. 565 (1980), interpreting section 301 of the Labor Management Relations (Taft-Hartley) Act, 29 U.S.C. § 185 (1976), to determine union responsibility for wildcat strikes in the private sector, and was approved and adopted by PERC in Dade County School Board v. Dade County School Maintenance Employees Committee, 6 Fla.Pub.Empl.Rep. (Lab.Rel.Press) p 11109 (Fla. PERC Apr. 30, 1980). As the hearing officer explained in his recommended order, Carbon Fuel Co. places upon the charging party the burden of proving union support for a wildcat strike. No obligation is placed upon the union to use all reasonable means to end an unauthorized strike and, therefore, though showing that its best efforts were used to end a strike might constitute a persuasive defense, a union does not bear the burden of disproving its support for the unauthorized strike. See City of Homestead v. Dade County Police Benevolent Association, 7 Fla.Pub.Empl.Rep. (Lab.Rel.Press) p 12347, at 733 (Fla. PERC Aug. 21, 1981).

A reading of Carbon Fuel Co. reveals that the common-law agency test used in that case was adopted so "that to find [a] union liable 'it must be clearly shown ... that what was done was done by their agents in accordance with their fundamental agreement of association'," Carbon Fuel Co., 444 U.S. at 217, 100 S.Ct. at 414, 62 L.Ed.2d at 399, quoting Coronado Coal Co. v. United Mine Workers of America, 268 U.S. 295, 304, 45 S.Ct. 551, 554, 69 L.Ed. 963, 968 (1925). The common-law agency test of section 301 replaced the "very loose" responsibility test of the National Labor Relations Act of 1935, under which the term "employer" included "any person acting in the interest of an employer," Carbon Fuel Co., 444 U.S. at 217, 100 S.Ct. at 414, 62 L.Ed.2d at 399. Quoting in part from the lower court's opinion, the Court in Carbon Fuel Co. concluded that " '[t]here was no evidence presented in the district court that [the union] instigated, supported, ratified, or encouraged any of the work stoppages ....' [Citation omitted.] ... the local unions lacked authority to strike without authorization from [the union]. [Citation omitted.] Moreover, [the union] had repeatedly expressed its opposition to wildcat strikes. Petitioner thus failed to prove agency ...," id. at 218, 100 S.Ct. at 414, 62 L.Ed.2d at 400.

Applying these common-law principles of agency, the hearing officer below wrote:

The City seeks to show that the Dade County PBA supported the strike by Homestead PBA bargaining unit members by demonstrating that the actions of Sergeant Nick Tauriello, who admittedly participated in and supported the strike, bind the Dade County PBA because of Tauriello's official status as the elected representative for the Homestead PBA bargaining unit members in Homestead

Page 469

contract negotiations (see City's Proposed Order at 19-20). The City further argues that even if Tauriello's official status did not bind the Dade County PBA, the efforts of PBA President Hugh Peebles, PBA counsel Donald D. Slesnick, II, and PBA employee and negotiator Sharon Dranow to repudiate Tauriello's actions and end the strike were so minimal as to lead to the inference that the Dade County PBA supported the strike.

To the contrary, I conclude that while prior to the week beginning Monday, October 20, it might have been reasonable for members of the Homestead PBA bargaining unit to believe that Tauriello's actions represented the views of the Dade County PBA because of his official status, they were well aware during the week before they walked out on October 27 that Tauriello represented their views, and not the opposing view of the Dade County PBA. I further conclude that the actions of Peebles, Slesnick, and Dranow made it unreasonable for Homestead PBA bargaining unit members to believe that their walkout represented the views of the Dade County PBA. The following paragraphs will enumerate the factual grounds for my conclusions in this regard.

City of Homestead at 734.

The hearing officer then reviewed the evidence upon which he based his finding of fact that Tauriello was not acting as an agent of the PBA when he instigated the wildcat strike. See id. at 734-35. 2

Page 470


In its final order, PERC stated that the hearing officer's findings of fact were supported by competent substantial evidence, that the proceedings upon which the findings were based comported with the essential requirements of law and then expressly adopted the hearing officer's findings of fact as its own. PERC added, however, that it was "in substantial disagreement with the Hearing Officer's ultimate finding regarding agency," City of Homestead at 722. PERC felt that the hearing officer had applied the wrong standard of proof of agency and that the correct standard could be found in Sunset Line & Twine Co., 79 N.L.R.B. 1487 (1948).

The "ordinary law of agency" mandated by Sunset Line & Twine Co. was expressed in that National Labor Relations Board order and quoted in the PERC order below as follows:

1. The burden of proof is on the party asserting an agency relationship, both as to the existence of the relationship and as to the nature and extent of the agent's authority....

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