Hillsborough County Aviation Authority v. Hillsborough County Governmental Employees Ass'n, Inc., 85-867

• Citation: 11 Fla. L. Weekly 273,482 So.2d 505
• Decision Date: 22 January 1986
• Docket Number: No. 85-867,85-867
• Parties: 121 L.R.R.M. (BNA) 3265, 11 Fla. L. Weekly 273 HILLSBOROUGH COUNTY AVIATION AUTHORITY and Hillsborough County Civil Service Board, Appellants, v. HILLSBOROUGH COUNTY GOVERNMENTAL EMPLOYEES ASSOCIATION, INC., Hillsborough County Police Benevolent Association, Inc., and Public Employees Relations Commission, Appellees.
• Court: Court of Appeal of Florida (US)

Page 505

482 So.2d 505

121 L.R.R.M. (BNA) 3265, 11 Fla. L. Weekly 273

HILLSBOROUGH COUNTY AVIATION AUTHORITY and Hillsborough County Civil Service Board, Appellants, v. HILLSBOROUGH COUNTY GOVERNMENTAL EMPLOYEES ASSOCIATION, INC., Hillsborough County Police Benevolent Association, Inc., and Public Employees Relations Commission, Appellees.

No. 85-867.

District Court of Appeal of Florida Second District.

Jan. 22, 1986.

Lucius M. Dyal, Jr. and Mark A. Hanley of Shackleford, Farrior, Stallings & Evans, P.A., Tampa for appellant Hillsborough County Aviation Authority.

Peter W. Zinober and Richard C. McCrea, Jr. of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. and J. Ronald Wigginton, Tampa, for appellant Hillsborough County Civil Service Board.

Gene "Hal" Johnson, Tallahassee, for appellees Hillsborough County Governmental Employees Ass'n, Inc., and Hillsborough County Police Benevolent Ass'n., Inc.

Phillip P. Quaschnick, Tallahassee, for appellee Public Employees Relations Com'n.

LEHAN, Judge.

The Hillsborough County Aviation Authority (the Authority) and the Hillsborough County Civil Service Board (the Board) appeal from an order of the Public Employees Relations Commission (PERC). The order found that the Authority had committed unfair labor practices in violation of sections 447.501(1)(a) and (c), Florida Statutes (1983), "by refusing to implement certain provisions in the 1984 ratified collective bargaining agreement between the ... [Authority] and the Hillsborough County Police Benevolent Association [the PBA] ... and the Hillsborough County Governmental Employees Association [the GEA] concerning the issues of holidays, funeral leave, seniority and layoffs...." It is undisputed that the provisions of the collective bargaining agreement concerning those issues are in conflict with the uniform terms and conditions of employment in the Board's rules and regulations. We reverse.

After negotiating the collective bargaining agreement, the Authority, in order to eliminate the conflict, requested that the Board amend its rules and regulations. The Board did not do so. The Authority then did not implement the agreement, and the unfair labor practice charges against the Authority which are the subject of this appeal were filed by the PBA and the GEA.

We hold that the Authority did not commit unfair labor practices. In its failure to implement the provisions of the collective bargaining agreement the Authority appeared to have acted in accordance with section 447.309(3), Florida Statutes (1983), which provides:

If any provision of a collective bargaining agreement is in conflict with any law, ordinance, rule, or regulation over which the chief executive officer [of the public employer] has no amendatory power, the chief executive officer shall submit to the appropriate governmental body having amendatory power a proposed amendment to such law, ordinance, rule, or regulation. Unless and until such amendment is enacted or adopted and becomes effective, the conflicting provision of the collective bargaining agreement shall not become effective.

The Authority had a duty to bargain in good faith. Section 447.501(1)(c). The Authority did not violate that duty. To the contrary, the Authority, after negotiating the agreement, not only appeared to follow section 447.309(3) but also followed this court's opinion in Pinellas County Police Benevolent Association v. Hillsborough County Aviation Authority, 347 So.2d 801 (Fla. 2d DCA 1977). Pinellas held that the Board has discretion to amend or not amend its rules and regulations when a public employer requests an amendment to eliminate a conflict with a collective bargaining agreement. Pinellas also held that, in accordance with section 447.309(3), collective bargaining agreement provisions are not effective when in conflict with civil service rules and regulations unless and until those rules and regulations are amended to eliminate the conflict. As was concluded in Pinellas, "the language used by the legislature is that 'unless and until' the agreement is so ratified its conflicting provisions remain ineffective." 347 So.2d at 803. The Authority did all it could to implement the agreement consistent with the law set out in Pinellas. Appellees, PERC, the PBA and the GEA do not dispute that the Authority followed Pinellas.

Appellees seek to avoid the effect of Pinellas in several ways. For example, they assert, as discussed below, that Pinellas does not represent currently valid law and that, although Pinellas involved the Authority and the same groups of employees as are involved here, Pinellas is not binding upon this case under the doctrine of collateral estoppel because the unions in Pinellas were not the same as those here.

They cite Hotel, Motel, Restaurant Employees & Bartenders Union, Local 737, AFL-CIO v. Escambia County School Board, 426 So.2d 1017 (Fla. 1st DCA 1983), as representing currently valid law. In Escambia the First District Court of Appeal concluded that section 447.309(3) does not govern conflicts between collective bargaining agreements and civil service laws or regulations. That conclusion appeared to run counter to the literal wording of section 447.309(3), as the First District recognized. The Escambia opinion agreed with PERC's statement in that case that the argument was "facially very appealing" that section 447.309(3) resolves any conflict between a collective bargaining agreement and civil service rules and regulations. 426 So.2d at 1019. Escambia, however, relied upon section 447.601 which provides

Merit or civil service system; applicability--The provisions of this part shall not be construed to repeal, amend, or modify the provisions of any law or ordinance establishing a merit or civil service system for public employees or the rules and regulations adopted pursuant thereto or to prohibit or hinder the establishment of other such personnel systems unless the provisions of such merit or service system laws or ordinances or rules and regulations adopted pursuant thereto are in conflict with the provisions of this part, in which event such laws, ordinances, or rules and regulations shall not apply, except as provided in s. 447.301(4).

In light of section 447.601, Escambia adopted the argument of PERC in that case that "[i]t seems clear from a reading of both statutes that Section 447.309(3) must be read as contemplating conflicts between collective bargaining agreements and laws or regulations other than laws or regulations relating to civil service systems." 426 So.2d at 1019.

We do not believe the apparent conflict between those conclusions in Escambia and in Pinellas is the determinative issue in the case at hand which consists only of an appeal from a decision of PERC that the Authority was guilty of unfair labor practices. Therefore, we need not address the further argument of the PBA and the GEA to the effect that there is really no such conflict because Escambia merely represented a further evolutionary step beyond Pinellas in the developing law involving public sector bargaining. We also do not address the argument of the Board in this case that the Escambia County Civil Service Act was materially different from the Hillsborough County Civil Service Act.

As we have said, this case simply turns upon whether the Authority committed unfair labor practices. Types of unfair labor practices are listed in section 447.501(1). The principal type potentially involved in this case is described in section 447.501(1)(c), which proscribes on the part of public employers "[r]efusing to bargain collectively, failing to bargain collectively in good faith...." The Authority, in its failure to implement provisions in the collective bargaining agreement after the Board had refused the Authority's request to amend the rules and regulations, was following Pinellas and therefore did not fail to bargain in good faith. Even assuming, arguendo, that Pinellas was wrong, we cannot conclude that the Authority was wrong.

The Board and the Authority dispute the assertion by appellees that the parties in Pinellas were materially different from those in this case and contend that the opinion of this court in Pinellas is binding under the doctrine of estoppel by judgment. In support of their position that, although the PBA and the GEA were not the unions before the court in Pinellas, both cases essentially involved the same parties, the Board and the Authority present alternative arguments. They argue, first, that there was privity between, on the one hand, the PBA and the GEA in this suit and, on the other, the unions in that suit even though the PBA and the GEA did not receive their representation certifications directly from the unions who were parties to Pinellas. Secondly, they argue, citing Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir.1975), that the PBA...