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

• Decision Date: 30 December 1982
• Docket Number: No. AF-17,AF-17
• Citation: 425 So.2d 133
• Parties: 9 Ed. Law Rep. 767 PALM BEACH JUNIOR COLLEGE BOARD OF TRUSTEES, Appellant, v. UNITED FACULTY OF PALM BEACH JUNIOR COLLEGE, Appellee.
• Court: Florida District Court of Appeals

Page 133

425 So.2d 133

9 Ed. Law Rep. 767

PALM BEACH JUNIOR COLLEGE BOARD OF TRUSTEES, Appellant, v. UNITED FACULTY OF PALM BEACH JUNIOR COLLEGE, Appellee.

No. AF-17.

District Court of Appeal of Florida,

First District.

Dec. 30, 1982.

Rehearing Denied Feb. 4, 1983.

Jesse S. Hogg of Hogg, Allen, Ryce, Norton & Blue, P.A., Coral Gables, for appellant.

C. Anthony Cleveland, Gen. Counsel, FEA/United, Charles F. McClamma, Staff Counsel, PERC, Tallahassee, for appellee.

ERVIN, Judge.

Appellant, Palm Beach Junior College, appeals an order of the Public Employees Relations Commission (PERC) which determined that a public employer commits an unfair labor practice by bargaining to impasse its proposal to include within a collective bargain agreement a management prerogatives clause, ¹ and, after acting as a legislative body, by requiring that the clause be incorporated within the agreement. As a remedy, PERC set aside the impasse resolution action taken by the Board of Trustees in accordance with Section 447.403(4), Florida Statutes (Supp.1980), and imposed a modified contract on the parties. Appellant urges numerous points on appeal. We affirm all, but address only one which we find merits extended consideration, urging that the employer's insistence on the clause was in conformity with a legitimate management interest, and was consistent with case law in the private sector.

Bargaining between United Faculty of Palm Beach Junior College (United Faculty) and Palm Beach Junior College Board of Trustees (Palm Beach) began on April 16, 1980. On June 10, 1980, as part of a package of bargaining proposals, Palm Beach presented to the union a management prerogatives clause, which was rejected by its bargaining representative the following week, and an impasse was declared. A mediator was selected and bargaining sessions were held at which the parties discussed but failed to agree on substitute language for the proposed clause. Among other things, United Faculty union presented the following alternatives: that the clause be withdrawn; that Palm Beach submit a list of subjects to which the waiver would apply; and that the parties bargain over such a list if the section were withdrawn until the parties engaged in negotiations for the 1981-82 contract. Palm Beach refused to withdraw its proposal, declined to formulate a list, stating that it believed it could not develop an adequate list, and responded further that it would proceed only if the matter were included in current negotiations for the 1980-81 contract year.

On August 28, 1980, a special master was appointed by PERC, and on October 10, 1980, he recommended that the proposed clause not be included within the contract. On October 30, 1980, Palm Beach proposed two alternative clauses, ² but the parties were again unable to reach agreement. On November 19, 1980, the Board of Trustees of Palm Beach Junior College, in accordance with Section 447.403(4), Florida Statutes (Supp.1980), and in its capacity as a legislative body, resolved the impasse by mandating a contract which included the management prerogatives clause originally proposed by Palm Beach. This contract, with salary increases and other terms the parties had tentatively agreed upon during bargaining, was prepared, signed, and offered to United Faculty for a ratification vote in accordance with Section 447.403(4)(e), Florida Statutes (Supp.1980). United Faculty declined to sign the contract or to submit it to the members for a vote; instead it filed an unfair labor practice charge with PERC.

After a public hearing, the hearing officer's recommended order found that the proposed clause was not a mandatory subject for bargaining and that Palm Beach had committed an unfair labor practice by bargaining to impasse on the clause. As a remedy, the hearing officer recommended that Palm Beach offer the contract of November 19, 1980, to United Faculty without the clause. In its conclusions of law, the Commission held, among other things, that inclusion of a management prerogatives clause

which operates as a waiver of the [employees'] statutory right to bargain over the effect or impact upon bargaining unit employees of the exercise of management rights prior to the implementation of such management rights or decisions is not a subject over which collective bargaining negotiations are required pursuant to Section 447.309(1), Florida Statutes (1979).

PERC ordered Palm Beach to rescind the action taken on November 19, 1980, and thereafter to offer United Faculty a collective bargaining agreement without the disputed clause, but with the other provisions that the parties had agreed upon during negotiations. This appeal followed.

Essentially, we are asked in this appeal whether PERC's interpretation of the Public Employees Relations Act (PERA) was in error. The standard to be applied on review of the construction of a statute that an agency is charged to enforce is ordinarily to accord substantial deference to it and decline to overturn it, except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the state's constitution or the plain intent of the statute. See King v. Seamon, 59 So.2d 859, 861 (Fla.1952); Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); Green v. Stuckey's of Fanning Springs, Inc., 99 So.2d 867 (Fla.1957); State ex rel. Biscayne Kennel Club v. Board of Business Regulation, 276 So.2d 823 (Fla.1973); Ft. Pierce Utilities Authority v. Florida Public Service Commission, 388 So.2d 1031, 1035 (Fla.1980); ABC Liquors, Inc. v. Department of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981); State Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981). As we observed in Framat Realty, Inc., 407 So.2d at 242: "[T]he judiciary must not, and we shall not, overly restrict the range of an agency's interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views."

PERC has been provided with broad powers of administering Part II of Chapter 447 by Section 447.207, Florida Statutes (1979). We are not prepared to state on this record that PERC's interpretation of the respective statutes was clearly erroneous, unreasonable or in conflict with some provision of the constitution or the plain intent of the statutes involved. We consider that there was, under the circumstances, both competent and substantial evidence, as well as a legal foundation supporting the Commission's determination that the public employer's insistence on including the disputed clause within the agreement was an unfair labor practice.

The record reveals that on more than one occasion Palm Beach Junior College refused, in response to the union's request, to disclose a list of matters over which it proposed to exercise unilateral control. The effect of the public employer's ultimate action was to force the union to waive, prior to the implementation of any such management decision, whatever right the union might otherwise have following its execution to bargain over the impact the decision could have on mandatory items of bargaining, i.e., the wages, hours, and terms and conditions of employment. See Section 447.309(1), Florida Statutes. The hearing officer amplified upon the ordinary bargaining process as follows:

In the normal course of events, bargaining takes place prior to the management decision involved, or, more properly, in anticipation of management decisions likely to be made. For example, parties may negotiate a clause in a collective bargaining agreement which is only applicable in the event of a layoff to provide an orderly procedure in the event that management decides to lay off employees. The alternative is simply to negotiate layoff at the time the decision to lay off is taken. By opposing so-called "impact" bargaining, the Respondent [employer] simply registers its preference that contingencies be dealt with before the fact, rather than afterwards. To the extent that contingencies can be anticipated and dealt with before the fact, this is entirely appropriate. But to the extent that unforeseen contingencies arise, insisting that no bargaining take place to resolve such unforeseen contingencies represents a lack of good faith in the negotiating process. In this context, impact bargaining simply provides a means of resolving disputes concerning necessary but unforeseen changes in wages, hours, terms and conditions of employment consistent with the public interest....

The only bargaining that occurred between the parties was in essence the inclusion of the clause, or alternative clauses, in the agreement. No negotiations took place, however, as to the scope of subjects the proposed clause would encompass. The college either would not or could not provide a list of matters to which the proposed waiver clause might apply. Under the "take it or leave it attitude" evidenced by the employer, PERC correctly held that Palm Beach refused to bargain collectively in good faith with United Faculty in violation of Section 447.501(1)(c), Florida Statutes.

The public employer's insistence on including the waiver clause within the agreement, without bargaining over the effect the waiver might have on required subjects of bargaining, is somewhat analogous to the legislative mandate, provided in Sections 447.301(2) and 447.309(5), Florida Statutes (1979), that no collective bargaining agreement shall include any provision relating to retirement. In upholding the First District's decision invalidating the statutory prohibitions, our supreme court observed that the restrictions "did not simply regulate a particular aspect of collective bargaining--they prohibited it entirely. Article I, section 6, permits regulation of the bargaining process but not the abridgement thereof." City of Tallahassee...