Orange County Police Benev. Ass'n v. City of Casselberry, No. AS-43

CourtFlorida District Court of Appeals
Writing for the CourtNIMMONS
Citation457 So.2d 1125
PartiesORANGE COUNTY POLICE BENEVOLENT ASSOCIATION, Appellant, v. CITY OF CASSELBERRY and Florida Public Employees Relations Commission, Appellees.
Decision Date16 October 1984
Docket NumberNo. AS-43

Page 1125

457 So.2d 1125
ORANGE COUNTY POLICE BENEVOLENT ASSOCIATION, Appellant,
v.
CITY OF CASSELBERRY and Florida Public Employees Relations Commission, Appellees.
No. AS-43.
District Court of Appeal of Florida,
First District.
Oct. 16, 1984.

Page 1126

Thomas J. Pilacek of Pilacek, Cohen & Sommers, Orlando, for appellant.

Frank C. Kruppenbacher of Swann & Haddock, Orlando, for appellee City.

Thomas W. Young, III, Tallahassee, for appellee PERC.

NIMMONS, Judge.

The Orange County Police Benevolent Association (PBA) appeals from an order of the Public Employees Relations Commission (PERC) rejecting the hearing officer's recommended order and holding that the City of Casselberry (City) was not guilty of an unfair labor practice in the process of negotiating a collective bargaining agreement for the bargaining unit's City police officers. 1 We agree with the hearing officer who concluded that the City committed an unfair labor practice under Section 447.501(1)(a) and (c), Florida Statutes (1981) 2 by insisting to the point of impasse upon the exclusion of disputes regarding discharge and demotion from a grievance procedure which ends in binding arbitration. We therefore reverse PERC's order.

We summarize the facts which are taken from the hearing officer's recommended order, as augmented in PERC's final order. In August, 1981, PBA was certified as the bargaining agent for the City's police officers, excluding sergeants, lieutenants, assistant chief, chief and non-sworn personnel. Bargaining for an initial contract commenced in October, 1981. There were approximately ten negotiating sessions over the next ten months. From the inception, and throughout the period of negotiations, PBA contended that the contract's "grievance procedure culminating in binding arbitration," a provision required by Section 447.401, Florida Statutes (1981), 3 should include

Page 1127

disputes involving discharge or demotion. The City, however, consistently maintained that any agreed upon demotion and discharge provision should not be handled through the contract's grievance procedure. Instead, it was the City's position that such matters should be processed through the City's existing civil service procedures. At one point, the City, as an alternative to its preferred position, offered to submit grievances regarding discharge or demotion to a panel of law enforcement officers similar to that provided for by Section 112.532, Florida Statutes (1981). This was not accepted. Also, there was discussion about a detailed definition of "cause" for discharge. However, no agreement was reached prior to impasse regarding any demotion or discharge provision or definition of cause.

During the course of negotiations, the parties reached agreement on such subjects as overtime, workweek, workshift, leaves of absence, compensation for injuries, equipment safety, life insurance and medical insurance. When PBA declared impasse on August 5, 1982, the issues regarding wages and demotion and discharge were still pending and in dispute. At no time did PBA ever volunteer to exclude disputes involving discharge or demotion from a grievance-to-arbitration provision. Following PBA's declaration of impasse, the City proposed certain disciplinary provisions contained in existing collective bargaining agreements from two other municipalities. The PBA declined the offer because the provisions were not covered by a grievance-to-arbitration provision.

After the declaration of impasse on August 5, 1982, the parties continued to negotiate and eventually reached an agreement on October 7, 1982, the date of the evidentiary hearing on PBA's unfair labor practice charge. The parties never utilized a special master or other procedures available under Section 447.403 for the resolution of impasses. The parties stipulated in the proceedings below that agreement on a contract did not render moot PBA's unfair labor practice charge.

The basic question involved in this case is whether the City committed an unfair labor practice by insisting to the point of impasse upon a non-mandatory (or "permissive") subject of bargaining as a condition to an agreement upon mandatory subjects. The employer and employee have the duty to bargain in good faith on the subjects of wages, hours and terms and conditions of employment. Each party is entitled to press its position on these mandatory subjects to the point of impasse (which in the public sector may lead to provisions imposed upon the parties through the statutory impasse procedures including resolution through legislative action, Section 447.403, Florida Statutes). NLRB v. Wooster, 356 U.S. 342, 78 S.Ct. 718, 2 L.Ed.2d 823 (1958); Latrobe Steel Co. v. NLRB, 630 F.2d 171 (3rd Cir.1980). 4 On the other hand, there is no duty to bargain on non-mandatory (or permissive) subjects, and each party is free to bargain or not to bargain, or agree or not to agree as he sees fit. And a party's insistence upon a non-mandatory subject as a condition to agreement on mandatory subjects

Page 1128

amounts to a refusal to bargain and constitutes an unfair labor practice. Latrobe, supra, at 175; Palm Beach Junior College v. United Faculty of Palm Beach Junior College, 425 So.2d 133, 138 (Fla. 1st DCA 1983).

Demotion and discharge, including the definition of "cause" for discharge, are mandatory subjects of bargaining concerning which the parties are obligated to negotiate in good faith, and may do so to impasse. See Public Employees Relations Commission v. District School Board of DeSoto County, 374 So.2d 1005, 1013 (Fla. 2nd DCA 1979) (held that matters pertaining to the discharge of teachers are terms and conditions of employment.)

We hold that, under a proper construction of Chapter 447, Part II, the exclusion of demotion and discharge provisions from the grievance-to-arbitration provisions of the contract is a non-mandatory subject of bargaining even where the City has an existing civil service ordinance covering demotion and discharge. Section 447.401 (reproduced at footnote 3 supra) provides that the parties "shall negotiate a grievance procedure to be used for the settlement of disputes ... involving the interpretation or application" of the agreement and that such procedure shall provide for binding arbitration as its final step. That is not to say that a collective bargaining agreement which exempts its demotion and discharge provision from the operation of its grievance procedure in favor of existing civil service procedures is invalid or illegal. As this court held in American Federation of State, County & Municipal Employees, Local 1363 v. Florida Public Employees Relations Commission, 430 So.2d 481 (Fla. 1st DCA 1983) (hereafter "AFSCME, Local 1363"), Section...

To continue reading

Request your trial
5 practice notes
  • City of Miami v. F.O.P. Miami Lodge 20, No. 85-2863
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...which the parties are obligated to negotiate in good faith...." Orange County Police Benevolent Association v. City of Casselberry, 457 So.2d 1125, 1128 (Fla. 1st DCA 1984), affirmed in part, reversed in part on other grounds, 482 So.2d 336 (Fla.1986). See also Public Employees Relations Co......
  • Fraternal Order of Police, Miami Lodge 20 v. City of Miami, No. 77394
    • United States
    • United States State Supreme Court of Florida
    • November 19, 1992
    ...Florida Pub. Employees Relations Comm'n, 435 So.2d 275 (Fla. 5th DCA 1983); Orange County Police Benevolent Ass'n v. City of Casselberry, 457 So.2d 1125 (Fla. 1st DCA 1984), aff'd in part, rev'd in part on other grounds, 482 So.2d 336 (Fla.1986); Public Empls. Rels. Comm'n v. District Sch. ......
  • City of Casselberry v. Orange County Police Benev. Ass'n, No. 66155
    • United States
    • Florida Supreme Court
    • January 9, 1986
    ...County Civil Service Bd. McDONALD, Justice. We have for review Orange County Police Benevolent Association v. City of Casselberry, 457 So.2d 1125 (Fla. 1st DCA 1984), which expressly construes article I, section 6 and article III, section 14 of the Florida Constitution. This Court has juris......
  • City of Opa-Locka v. Dade County Police Benev. Ass'n, OPA-LOCK
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 1992
    ...and discharge provisions in the grievance procedure contained in a CBA. Orange County Police Benevolent Ass'n v. City of Casselberry, 457 So.2d 1125, 1128 (Fla. 1st DCA1984), aff'd in part, rev'd in part on other grounds, 482 So.2d 336 (Fla.1986). This is true even where, as here, the City ......
  • Request a trial to view additional results
5 cases
  • City of Miami v. F.O.P. Miami Lodge 20, No. 85-2863
    • United States
    • Court of Appeal of Florida (US)
    • January 31, 1989
    ...which the parties are obligated to negotiate in good faith...." Orange County Police Benevolent Association v. City of Casselberry, 457 So.2d 1125, 1128 (Fla. 1st DCA 1984), affirmed in part, reversed in part on other grounds, 482 So.2d 336 (Fla.1986). See also Public Employees Relations Co......
  • Fraternal Order of Police, Miami Lodge 20 v. City of Miami, No. 77394
    • United States
    • United States State Supreme Court of Florida
    • November 19, 1992
    ...Florida Pub. Employees Relations Comm'n, 435 So.2d 275 (Fla. 5th DCA 1983); Orange County Police Benevolent Ass'n v. City of Casselberry, 457 So.2d 1125 (Fla. 1st DCA 1984), aff'd in part, rev'd in part on other grounds, 482 So.2d 336 (Fla.1986); Public Empls. Rels. Comm'n v. District Sch. ......
  • City of Casselberry v. Orange County Police Benev. Ass'n, No. 66155
    • United States
    • Florida Supreme Court
    • January 9, 1986
    ...County Civil Service Bd. McDONALD, Justice. We have for review Orange County Police Benevolent Association v. City of Casselberry, 457 So.2d 1125 (Fla. 1st DCA 1984), which expressly construes article I, section 6 and article III, section 14 of the Florida Constitution. This Court has juris......
  • City of Opa-Locka v. Dade County Police Benev. Ass'n, OPA-LOCK
    • United States
    • Court of Appeal of Florida (US)
    • November 24, 1992
    ...and discharge provisions in the grievance procedure contained in a CBA. Orange County Police Benevolent Ass'n v. City of Casselberry, 457 So.2d 1125, 1128 (Fla. 1st DCA1984), aff'd in part, rev'd in part on other grounds, 482 So.2d 336 (Fla.1986). This is true even where, as here, the City ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT