Palm Beach Jr. College Bd. of Trustees v. United Faculty of Palm Beach Jr. College

• Decision Date: 30 August 1985
• Docket Number: No. 63352,63352
• Citation: 475 So.2d 1221,10 Fla. L. Weekly 450
• Parties: 120 L.R.R.M. (BNA) 3223, 27 Ed. Law Rep. 1286, 10 Fla. L. Weekly 450 PALM BEACH JUNIOR COLLEGE BOARD OF TRUSTEES, Petitioner, v. UNITED FACULTY OF PALM BEACH JUNIOR COLLEGE, Respondent.
• Court: Florida Supreme Court

Page 1221

475 So.2d 1221

120 L.R.R.M. (BNA) 3223, 27 Ed. Law Rep. 1286,

10 Fla. L. Weekly 450

PALM BEACH JUNIOR COLLEGE BOARD OF TRUSTEES, Petitioner, v. UNITED FACULTY OF PALM BEACH JUNIOR COLLEGE, Respondent.

No. 63352.

Supreme Court of Florida.

Aug. 30, 1985.

Rehearing Denied Oct. 22, 1985.

Jesse S. Hogg of Hogg, Allen, Ryce, Norton & Blue, Coral Gables, Florida, for petitioner.

C. Anthony Cleveland and Steven A. Been, Tallahassee, for the United Faculty of Palm Beach Junior College, Phillip P. Quaschnick and Vernon Townes Grizzard, Tallahassee, for the Public Employees Relations Com'n, respondent.

J. Robert McClure, Jr., and Paul A. Saad, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tallahassee, for the Dist. of Trustees of Tallahassee Community College.

Richard F. Trismen of Baker & Hostetler, Orlando, for the Dist. Bd. of Trustees of Valencia Community College.

Richard H. Bailey of Harllee, Porges, Bailey & Durkin, Bradenton, for Manatee Junior College Bd. of Trustees.

Marian P. McCulloch of Greene, Mann, Rowe, Stanton, Mastry & Burton, Tampa, for Hillsborough Community College.

Chester B. Griffin of Neill, Griffin, Jeffries & Lloyd, Ft. Pierce, for Indian River Community College District Bd. of Trustees.

William W. Gilkey and Sally Foote Corcoran of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, Clearwater, Michael K. Grogan and Joann M. Bricker of Coffman,

Coleman, Henley & Andrews, Jacksonville, for Edison Community College

Mark E. Levitt, W. Reynolds Allen, and Wayne L. Helsby of Hogg, Allen, Ryce, North & Blue, Tampa, for Miami-Dade Community College.

Richard H. Frank and Mark F. Kelly, of Frank & Kelly, Tampa, for Pinellas Classroom Teachers Assn. and Orange County Classroom Teachers Ass'n, Inc.

Pamela L. Cooper, Tallahassee, for the Fla. Teaching Profession-Nat. Educ. Ass'n.

Gene "Hal" Johnson, Tallahassee, for the Fla. Police Benevolent Ass'n, Inc.

CORRECTED OPINION

EHRLICH, Justice.

This is an appeal from a decision of the First District Court of Appeal affirming an order of the Public Employees Relations Commission. The decision construed article I, section 6 of the Florida Constitution, relating to the collective bargaining rights of public employees. We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

Contract bargaining between the bargaining agents for United Faculty of Palm Beach Junior College (United Faculty) and Palm Beach Junior College (the College) began in April 1980. On June 10, 1980, the parties agreed to a 9.5 percent wage increase. However, the College also submitted a proposed addition to its current management rights clause. ¹ The addition would constitute a waiver by United Faculty of the right to bargain during the term of the contract about management actions which affected terms and conditions of employment. Such "impact bargaining" is normally required unless the union clearly and unmistakably waives the right to bargain on the matter. Palowitch v. School Board of Orange County, 3 FPER 280 (1977), aff'd, 367 So.2d 730 (Fla. 4th DCA 1979).

The parties were unable to agree about the clause, and United Faculty declared an impasse in June. ² Mediation began in July. In August, United Faculty proposed several alternatives: withdraw the clause; postpone bargaining on the clause to the following year; list subjects covered by the clause; or agree to a combination of bargaining and consultation instead of the clause. The College rejected the proposals. On October 10, 1980, a special master appointed by the Public Employees Relations Commission (PERC) recommended the clause be excluded from any collective bargaining agreement. On October 30, the College proposed two alternative clauses ³ which were rejected by United Faculty.

On November 19, 1980, the College Board of Trustees resolved the impasse by mandating that the disputed clause be included in a contract to be offered to the union for ratification pursuant to section 447.403(4)(e) of Florida Statutes (1980 Supp.) ⁴ The contract subsequently presented to the union included the disputed clause, but also incorporated matters previously resolved in bargaining including the 9.5% wage increase. No ratification vote has occurred, but section 447.403(4)(e) provides for the legislative action to take effect automatically. The pay raise has been deposited in an escrow account pending resolution of the case now before us.

United Faculty filed an unfair labor practice complaint with PERC, alleging that the College refused to bargain because of its intransigence on the clause. In June 1981, PERC found the college had engaged in an unfair labor practice in bargaining to impasse on the waiver clause. United Faculty of Palm Beach Junior College v. Palm Beach Junior College Board of Trustees, 7 FPER 593 (1981). PERC ordered the Board of Trustees to rescind its November 19, 1980, action mandating the waiver clause and to offer a contract to United Faculty containing the provisions agreed upon in negotiations, but without the clause. The Board of Trustees appealed to the First District Court of Appeal, which affirmed the PERC decision, then-Judge Shaw dissenting. Palm Beach Junior College Board of Trustees v. United Faculty of Palm Beach Junior College, 425 So.2d 133 (Fla. 1st DCA 1983).

There is no question in this case that the College sought the waiver for the express purpose of preventing the union from demanding impact bargaining. The College says such a waiver is necessitated by Palowitch v. School Board of Orange County, 3 FPER 280 (1977), aff'd, 367 So.2d 730 (Fla. 4th DCA 1979). In Palowitch, the employer changed its semester system and in the process reduced the terms of some employee contracts from twelve months to ten. The union sought to bargain about the change in job status, but the employer refused. The district court enforced PERC's determination that, while a public employer is free to alter the semester system, it was obliged under Florida's Public Employees Relations Act (PERA), sections 447.201-.609 of Florida Statutes, to negotiate with the union about the resulting effect on "wages, hours, and terms and conditions of employment." In its order, PERC noted in passing that any waiver of the right to collectively bargain must be "clear and unmistakable." PERC also correctly distinguished management's clear right to unilaterally change the semester system, from the decision to alter employment conditions, which is a subject of collective bargaining.

In a Palowitch situation, the union could waive its right to bargain, for instance, by failing to demand bargaining when given advance notice of a specific change in conditions, or by negotiating for such a contingency during contract bargaining and agreeing to abide by the provision in the contract for such contingency. The question in this case is whether the College can insist to impasse that the union waive all impact bargaining for contingencies not provided for in the contract.

The Board of Trustees urges this Court to follow the federal precedent of NLRB v. American National Insurance Co., 343 U.S. 395, 72 S.Ct. 824, 96 L.Ed. 1027 (1952). In American National, the Supreme Court held that it was not an unfair labor practice for an employer to demand to the point of impasse that a management rights clause (reserving certain management prerogatives) be included in any contract it signed with the union representing its employees. As the district court noted in its decision sub judice, federal labor law decisions are persuasive but not binding authority for judicial interpretations of the PERA. 425 So.2d at 138. The district court dealt with the American National precedent by distinguishing the disputed clause in American National from the instant clause, and by finding that public policy dictates a different outcome under the PERA.

A management rights clause like the one in American National merely recognizes an employer's right to make executive decisions. In Florida, management rights are recognized in section 447.209. The collective bargaining rights of employees are guaranteed by article I, section 6, of the Florida Constitution and the PERA, specifically section 447.301. Thus, a union's waiver of the right to collectively bargain is a waiver of rights reserved to employees. It is not a recognition of hitherto unrecognized management rights.

What the College bargaining agent demanded in this case bears no resemblance to the management rights clause in American National. ⁵ The College was not seeking recognition of management rights, provided for in section 447.209, but a waiver of rights under section 447.301 and article I, section 6. American National is therefore inapposite to the issue before us.

In private sector labor law, contractual waivers of the right to collectively bargain during the term of a contract are termed, inter alia, "waivers," "zipper clauses," or "wrap up clauses." "A zipper or integration clause purports to close out bargaining during the contract term and to make the written contract the exclusive statement of the parties' rights and obligations.... On occasion, the integration and waiver may be limited only to matters that were 'discussed during the negotiation of this Agreement.' " R. Gorman, Basic Text on Labor Law, Unionization and Collective Bargaining 471-72 (1976) (the cited pages also contain an example of a typical zipper clause). See also 2 Collective Bargaining Negotiations & Contracts (BNA) 36:421-422 (1981) (examples of zipper clauses in recent collective bargaining agreements).

The National Labor Relations Board (NLRB) and the federal courts have recognized the propriety of zipper clauses, reasoning that a union "may relinquish the statutory right to bargain, if, as a part of the bargaining process, it elects to do so." NLRB v. Auto Crane Co., 536 F.2d 310, 312 (10th Cir.1976). See also e.g., NLRB v. Southern Materials Co., 447 F.2d 15 (4th Cir.1971); ...