Pasco County School Bd. v. Florida Public Employees Relations Commission
Decision Date | 16 November 1977 |
Docket Number | No. CC-38,CC-38 |
Citation | 96 L.R.R.M. 3347,353 So.2d 108 |
Parties | 96 L.R.R.M. (BNA) 3347 PASCO COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Pasco County Classroom Teachers Association, Respondents. |
Court | Florida District Court of Appeals |
Joe A. McClain of McClain, Hobby & Greenfelder, Dade City, for petitioner; John Edward Alley and Daniel H. Kunkel, of Alley & Alley, Miami, of counsel.
Jack L. McLean, Jr. and Austin F. Reed, for respondent Florida Public Emp. Relations Commission; Sidney L. Matthew, Tallahassee, for respondent Pasco County Classroom Teachers Ass'n.
The Pasco County School Board has filed its petition to review an order of the Florida Public Employees Relations Commission (PERC) finding it committed certain unfair labor practices in violation of Section 447.501(1)(a), (b) and (c) of the Public Employees Relations Act (PERA). PERC has also filed its petition to enforce the order entered.
The School Board has presented the following issues to us for our consideration: 1. The General Counsel of PERC should not be permitted to prosecute unfair labor practice charges. 2. The final order is formulated in violation of the procedural protections incorporated in the Administrative Procedure Act to the detriment of the School Board. 3. The School Board did not act against certain named discriminatees in retaliation for their union activity. 4. The School Board did not violate its duty to bargain with the PCTA. 5. PERC improperly relied on the special master's report to support findings of fact. 6. PERC ordered reinstatement with back pay contrary to the hearing officer's recommendation that a separate hearing be held to determine the appropriate amount to be awarded.
The School Board entered into a collective bargaining agreement with the Pasco Classroom Teacher's Association (PCTA) effective September, 1974 through June 30, 1975. Following certification of PCTA by PERC, negotiations were conducted between the parties from April 24, 1975 until July 28, 1975, and when no fruitful bargaining could be obtained, an impasse was declared on July 28, 1975. Pursuant to Section 447.403, Florida Statutes (1975), a special master was appointed by PERC to reconcile the differences between the parties. Later, complaints were filed in separate cases before PERC charging the Board with the following unfair labor practices: The School Board on March 24, 1975, as a result of non-tenured teacher Ronald Eckstein's union activity, refused to grant Eckstein a continuing contract for the school year 1975-76, and to reappoint him as head of the social studies department at Hudson High School. Two other complaints charged the Board with discriminatorily refusing to rehire probationary instructors Sharyn Disabato and Fred Rydzik, because of their union activities, for the 1975-76 school year. A fourth complaint charged that following the certification of PCTA by PERC, on April 17, 1975, as the collective bargaining agent for instructional personnel employed by the Board, and during collective bargaining negotiations, on June 3, 1975, the Board unilaterally, and without notice to PCTA, reduced salaries for the 1975-76 school year for all instructional personnel, froze a step increase which had been negotiated under the 1974-75 contract and reduced all teacher salary supplements.
A hearing was held before a DOAH hearing examiner on the four complaints. At the conclusion of the testimony an order was entered recommending the charges be sustained. PERC, after reviewing the record, concluded there was "ample evidence" to support the complaints and entered a final order directing (1) that Disabato and Rydzik be reinstated to their former or equivalent positions and be made whole for any loss of earnings; (2) that Eckstein be appointed to continuing contract, be reappointed head of the social studies department, and be made whole for any loss of earnings; (3) that the Board restore all employee salaries to the level existing before the Board unilaterally decreased wages during bargaining, pay interest on the amounts withheld and restore two planning days which the Board eliminated from the 1975-76 school year; and (4) that the Board cease and desist from interfering with and restraining or coercing employees from any of the rights guaranteed them under PERA.
The Board argues it has been prejudiced by the General Counsel's prosecution of the unfair labor practices, contending there is no specific statutory authority under PERA permitting PERC to prosecute such charges. The Board is correct that there is no such explicit statutory authority. Section 447.503(1), Florida Statutes (1975), authorizes the Commission, or its agent, to conduct a preliminary investigation to determine whether there is substantial evidence indicating a prima facie violation of an applicable unfair labor practice provision. If it is determined there is such evidence, PERC or its agent shall cause to be served upon the person charged with the violation a copy of the charges and a notice of the hearing before the Commission. The statute, however, is silent as to the grant of any specific authority to prosecute such charges following the investigation and the filing of the complaint, although Fla.Admin.Code Rule 8H-4.08 permits the General Counsel of PERC to "assume part or all of the burden of presenting the evidence in support of the allegations in the complaint." 1
The record does not reveal the Board at the administrative level ever asserted any objection it was prejudiced by the General Counsel's prosecution of the charges. It did not challenge Rule 8H-4.08 as having been adopted without any validly delegated legislative authority. See Section 120.56, Florida Statutes (1975). The Board has failed to demonstrate it was prejudiced by the General Counsel's prosecutorial position. A combination of investigative, prosecutorial and adjudicative functions in one body does not per se create an unconstitutional risk of bias and one so claiming must show prejudice. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). We therefore decline to express an opinion as to whether there was valid delegation of authority to PERC to prosecute unfair labor charges in the absence of either a timely challenge to the Rule or an objection at some stage in the administrative proceedings.
Nor is it a point which we may consider for the first time on review as fundamental error. It is not fundamental error. Section 120.68(2) provides that review proceedings from administrative action "shall be conducted in accordance with the Florida Appellate Rules." We are authorized by Fla.App. Rule 3.7 i to consider any jurisdictional or fundamental error which is apparent in the record, even though objection to it was not made at a lower level. A fundamental error exists if its correction can be deemed essential to the object and purpose of the proper administration of justice. Custer v. State, 159 Fla. 574, 34 So.2d 100 (1948). We do not consider the record reveals the asserted error so fundamental as to be essential to the proper administration of justice.
The Board argues the final order of PERC so intermingles findings of fact and conclusions of law that it is impossible to determine whether the order based its holdings on particular fact situations or on interpretations of the law. We must disagree. While the final order of the Commission is not a model of perfection, nevertheless it was not violative of Section 120.59(1) requiring that findings of fact and conclusions of law be separately stated. PERC's order specifically adopted the findings of the hearing officer. The hearing officer submitted a detailed report and recommended order separately stating his findings and recommendations. Section 120.57(1)(b)9 allows the agency to adopt the recommended order as the agency's final order or to reject or modify the conclusions of law. It specifically prohibits the agency's rejection or modification of the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order that the findings of fact were not based upon competent substantial evidence.
We are not confronted with the situation involved in Venetian Shores Home & Prop. Own. v. Ruzakawski, 336 So.2d 399 (Fla. 3rd DCA 1976); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977), and McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), where the reviewing agency simply rejected the hearing officer's findings of fact out of hand without stating with particularity its reasons for so doing.
The action of an agency, following a full hearing before a hearing examiner, is in the nature of a procedural review. Venetian Shores Home & Prop. Own. v. Ruzakawski, supra. The findings of fact reported by a hearing officer to the reviewing agency become binding on the agency in the absence of an explicit determination that the findings were not based upon competent substantial evidence or that they did not comport with the essential requirements of law. Bolinger v. Division of Retir., State Dept. of Admin.,335 So.2d 568 (Fla. 1st CC DCA 1976).
The Board attacks that portion of PERC's order finding that the decisions not to rehire or to grant tenure to the discriminatees were made in retaliation for their union activity, complaining it is not based upon the whole record and that certain statutory standards for not renewing probationary contracts were misapplied by...
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