Orange County Police Benev. Ass'n v. City of Casselberry

• Decision Date: 16 October 1984
• Docket Number: No. AS-43,AS-43
• Citation: 457 So.2d 1125
• Parties: ORANGE COUNTY POLICE BENEVOLENT ASSOCIATION, Appellant, v. CITY OF CASSELBERRY and Florida Public Employees Relations Commission, Appellees.
• Court: Florida District Court of Appeals

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.

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 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 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 447.401 must be read in pari materia with Section 447.309(5), Florida Statutes (1981), which provides that collective bargaining agreements "shall contain all of the terms and conditions of employment ... except those terms and conditions provided for ... in applicable merit and civil service rules and regulations." We, therefore, held in AFSCME, Local 1363 that such a contract, notwithstanding that it purports to exempt certain of its provisions from the grievance-to-arbitration provision required by Section 447.401, is valid where the parties voluntarily entered into it. But to say that a collective bargaining agreement which utilizes existing civil service procedures in lieu of the grievance-to-arbitration mechanism contemplated by Section 447.401 is valid is not to say that the public employer, in negotiating a contract, is at liberty to insist to impasse upon excepting demotion and discharge provisions from the statutorily required grievance procedure. That is still a protected non-mandatory subject of bargaining and has been recognized as such by PERC in its order in AFSCME, Local 1363, 8 FPER p 13278 and in its brief in the instant case.

PERC's order points to the provisions of Section 447.203(14) which, while requiring the parties to negotiate the terms and conditions of employment, provides that "neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this part." PERC's reliance upon this provision is misplaced. That section does not alter the principles discussed above regarding the rights and obligations of the parties with respect to mandatory and non-mandatory subjects of bargaining.

In its appealed order, PERC relied upon the erroneous legal conclusion that the validity of PBA's unfair labor practice charge was dependent upon the parties having reached agreement upon a demotion and discharge provision. PERC reasoned:

[W]ithout a contractual provision covering demotion and discharge, there can be no duty to agree to a grievance provision which includes the arbitration of demotion and discharge decision.

And PERC's order, in rejecting the hearing officer's view that the City had refused to bargain in good faith, observed that the hearing officer had "apparently" relied upon the conclusion that a demotion and discharge provision had been agreed upon prior to the declaration of impasse. In the first place, the hearing officer made no such finding of an agreement on a demotion and discharge provision. Indeed, such a finding would have been contrary to the evidence. ⁵ But, secondly, agreement on such a provision was not a prerequisite to PBA's unfair labor practice charge. In order to constitute an unfair labor practice, it was sufficient for PBA to establish that the City insisted to the point of impasse upon the exclusion of demotion and discharge from the statutorily required grievance-to-arbitration provision (a non-mandatory subject of bargaining) as a condition to the agreement upon mandatory subjects such as demotion and discharge provisions, definition of "cause" for discharge, and wages.

PERC's order rejecting the recommended order was also predicated, in part, upon the fact that after the declaration of impasse the...